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Citation
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Judgment date
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| May 2014 |
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An interim interdict protecting alleged share ownership does not prevent the applicant from requisitioning a shareholders' meeting to remove a director.
Company law – Shareholders’ right to requisition meeting (s 61(3)) ; Removal of director by shareholders (s 71) ; Effect and construction of interim interdicts restraining voting/alienation of shares ; Court orders must be read in context and not given literal effect that thwarts corporate governance ; Plascon-Evans rule on disputes of fact in motion proceedings.
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30 May 2014 |
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A suretyship referencing a future loan is valid under s6 if the principal debt is identifiable by incorporation and extrinsic evidence.
Suretyship – formal requirements – s 6 General Law Amendment Act 50 of 1956 – written terms of suretyship must be embodied in a signed document. Accessory nature of suretyship – principal debt need not exist at time suretyship is concluded. Incorporation by reference – a suretyship omitting essential terms may be saved by identifying and incorporating a loan agreement by admissible extrinsic evidence. Admissibility – extrinsic evidence allowed to identify the principal obligation provided it does not impermissibly supplement the written agreement.
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30 May 2014 |
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Reported
A court may accept a third‑party purchaser’s bank guarantee as adequate substitute security for an improvement (enrichment) lien.
Enrichment (improvement) lien — substitution of security — judicial discretion to accept payment into court or third‑party banker’s guarantee — third‑party purchaser’s guarantee sufficient to secure enrichment claim — Bombay Properties distinction rejected; Sandton Square approach endorsed.
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30 May 2014 |
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Reported
Issue estoppel rejected: respondents not privies and arbitration did not decide alleged fiduciary-breach issues.
Res judicata / issue estoppel – idem actor requirement – privity – witnesses and interested employees do not necessarily derive title from arbitration parties. Issue estoppel – scope – an arbitration’s determination of contractual interpretation may not preclude litigation against non-parties on different issues such as fiduciary breach. Common law development – same-parties requirement may be relaxed but requires persuasive reasons and fairness considerations.
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30 May 2014 |
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Eviction under PIE requires full evidence on alternatives and occupiers’ circumstances; insufficiency of information warrants remittal.
PIE s6 eviction at instance of organ of state; just and equitable enquiry; requirement to consider availability of suitable alternative accommodation and occupiers’ personal circumstances; constitutional housing rights (s26, s28); duty of provincial and national authorities to provide information; remittal where material facts are lacking (Ekurhuleni/Grootboom/Joe Slovo precedent).
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30 May 2014 |
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Reported
Scheme rules cannot override statutory requirements; extension rights vested in the body corporate, not the developers.
Sectional title — right of extension — rules of scheme cannot confer rights beyond statute; rule 77 ultra vires; Sectional Titles Act 1986 s25(6) vests extension rights in body corporate where no statutory reservation; transitional preservation of rights requires compliance with statutory reservation/registration; municipal tie condition preventing separate ownership of garages/storerooms/maids rooms enforced; developers obliged to divest contravening units.
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29 May 2014 |
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Reported
Uncorroborated, unreliable accomplice evidence and material contradictions rendered the appellant’s conviction unsafe.
Criminal law – evidence – accomplice testimony – cautionary rule requires corroboration where accomplice is unreliable; uncorroborated accomplice evidence unsafe to convict. Criminal procedure – extra‑curial admissions of one accused do not constitute admissible evidence against a co‑accused for proving guilt. Evidence – contradictions between witnesses and misfindings on number of attackers undermine safety of conviction.
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29 May 2014 |
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Reported
Misappropriation and concealment of trust deficits rendered the attorneys unfit to continue practising.
Attorneys — Trust account irregularities — Misappropriation of trust funds and creation of trust deficits by paying investor interest from trust monies; manipulation of bank reconciliations to conceal deficits. Attorneys — Accounting obligations — Duty of every director/attorney to keep proper books and account for trust interest under s 78(3) and Rule 70 compliance. Professional discipline — Standard of proof in s 22(1)(d) enquiries; failure to provide meaningful explanations is aggravating; striking off appropriate where misconduct involves dishonesty and risk to trust creditors.
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29 May 2014 |
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Reported
Whether a pension‑fund rule creates employer‑funded redundancy benefits for non‑local authority employers admitted by concession.
Pension‑fund rules – interpretation in context and against factual background – redundancy/retrenchment benefit arising from collective bargaining among local authorities – employer‑funded benefit channeled through fund but not payable by Fund – extended definition of “local authority” not importing obligations onto non‑local employers admitted by concession.
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29 May 2014 |
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Whether a municipality must pay contractually proven refuse-collection fees supported by contemporaneous service counts.
Contract law – written memorandum of agreement governs where parties accept its terms – tariffs and CPI escalation – contemporaneous service counts as best evidence of quantum – pleading discrepancies and incorrect reliance on earlier municipal resolution – appeal dismissed.
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29 May 2014 |
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Whether the parties concluded a valid customary marriage under s 3(1) given rites, payment, delivery and subsequent conduct.
Customary law – Recognition of Customary Marriages Act 120 of 1998 – s 3(1) requirements for validity: age, mutual consent, negotiation/celebration according to customary law. Living customary law – courts may use expert evidence, textbooks and other evidence to ascertain contemporary customary practices. Essential rites – payment, exchange of gifts, slaughter, counselling and formal handing over (delivery of makoti) as indicia of a valid customary marriage. Evaluation of evidence – balance of probabilities, credibility and conduct after rites (photographs, letters, video) relevant to establish marriage.
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29 May 2014 |
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Reported
Refusal to postpone did not amount to gross irregularity where the litigant caused repeated delays and absented himself.
Civil procedure — Review — Gross irregularity — Postponement of trial mero motu — Judicial discretion to grant or refuse postponement — No right to chosen legal representative where litigant caused delay — Improper ex parte communications and double‑booking by counsel — Costs against unsuccessful reviewer.
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29 May 2014 |
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Reported
A commercial cooperation agreement silent as to duration is terminable by either party on reasonable written notice.
Contract — Duration silent — Tacit/implied term of terminability on reasonable notice may be implied by construction when parties’ relationship requires close cooperation and mutual trust; surrounding commercial circumstances relevant.
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29 May 2014 |
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Verifying affidavit by a cessionary need not show deponent’s first‑hand knowledge of all facts; documentary possession may suffice.
Civil procedure – Summary judgment – Rule 32(2) verifying affidavit by cessionary – deponent need not have first‑hand knowledge of every fact; possession of documents may suffice – fact‑based enquiry into reliability of positive assertions; Rule 32(3)(b) – opposing affidavit must disclose fully nature, grounds and material facts of bona fide defence.
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29 May 2014 |
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Reported
Where an appellant attended but was not heard, the Board’s non-appearance dismissal was void and the asylum-seeker’s permit must be restored.
Refugee law – s 22 asylum seeker permit – Refugee Appeal Board – disposal for non-appearance – attendance but not heard renders decision void – continued entitlement to asylum-seeker permit – unlawful arrest and detention – administrative duty to investigate – costs for amici curiae.
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28 May 2014 |
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Reported
A suspended employee taking outside work is not automatically deemed discharged under s17(5) absent unauthorised absence.
Public Service Act s 17(5)(a) – interpretation of subsections (i) and (ii); suspension – absence with or without permission; deemed discharge versus dismissal under LRA; jurisdiction of bargaining council to arbitrate presumed dismissals; s 30(b) remunerative outside work to be determined by disciplinary process where appropriate.
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28 May 2014 |
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Reported
Whether plastic turf-protection tiles are "floor coverings" under TH3918 or "other" plastic articles under TH3926.
Customs and excise – tariff classification – interpretation governed by Harmonized System: headings and chapter/section notes paramount; Explanatory Notes subsidiary – whether stadium turf is a "floor" within tariff heading 3918 – plastic turf-protection tiles not "floor coverings" but classifiable as "other articles of plastics" under 3926.90.90 – novelty of article irrelevant to classification.
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23 May 2014 |
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Reported
A summons served by the applicant interrupts prescription despite the s129 NCA notice to the respondent being delivered only later.
National Credit Act s 129 – notice to consumer; s 130(4)(b) – mandatory adjournment and remedial steps; Prescription Act s 15 – interruption by service of process; non‑compliance with s 129 is dilatory not void; summons served interrupts prescription.
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19 May 2014 |
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Reported
A court cannot award general damages absent the Fund’s satisfaction that the injury is 'serious' under the Regulations.
Road Accident Fund Act – s 17(1A) and Regulation 3 – serious injury assessment (RAF4) – Fund's satisfaction as jurisdictional fact – Fund not bound by its own expert – joint minute does not displace statutory dispute-resolution and Appeals Tribunal determination – court lacks jurisdiction to award general damages absent compliance with Regulation 3.
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19 May 2014 |
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Reported
No enforceable agreement: height servitudes are "interests in land" requiring written, signed deed under s 2(1) of the Alienation of Land Act.
Property law – Praedial servitudes as "interest in land" – Alienation of Land Act s 2(1) requires written, signed deed for alienation/exchange of interests in land; Contract – consensus reduced to writing – parties’ intention to be bound only by written, signed agreement; Contract formation – offer, rejection, counter-offer and lapse; Specific performance – unenforceable where no valid written agreement under Act.
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19 May 2014 |
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Incidental judicial remarks about multiple contracts are surplusage and do not create res judicata without evidence.
Civil procedure – amendment of particulars – prescription and interruption by amendment – court refusing amendment may treat amended claim as new for prescription purposes without deciding underlying contractual facts; surplusage in judgment does not create res judicata or issue estoppel. Evidence – factual findings on nature of contract require evidence and proper pleading. Res judicata / issue estoppel – prior incidental remarks unnecessary to decision do not preclude subsequent contrary pleas.
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19 May 2014 |
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Reported
Deregistration during a court‑ordered winding‑up is invalid; reinstatement restores the respondent’s corporate status and validates its acts.
Company law – deregistration under s 73 of Companies Act (1973) – competence where company under provisional/final winding‑up – administrative deregistration cannot trump court winding‑up. Company law – reinstatement/reinstation of deregistered companies – effect of CIPC cancellation of deregistration and restoration of corporate status. Civil procedure – competence of proceedings instituted by a deregistered company – validity of orders given pre‑reinstatement. Administrative law – unlawfulness and reviewability of deregistration carried out despite existing winding‑up order. Insolvency – winding‑up procedure – company remains in existence until affairs completely wound up (s 419 of 1973 Act).
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15 May 2014 |
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Reported
Indeterminate profit shares and undated cheques did not create credit agreements or secured loans under the National Credit Act; provisional sentence competent.
National Credit Act – definition of credit agreement and requirement of a quantified ‘charge/fee/interest’ – indeterminate profit shares not a ‘charge’; secured loan – cheque not pledged or ceded; pre-action requirements ss 129/130 apply only to credit agreements; negotiable instruments – cheques held for value may found provisional sentence.
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14 May 2014 |
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Affidavits were insufficient to decide prescription and statutory notice; Rule 6(5)(g) referral for oral evidence was ordered.
Prescription — constructive knowledge — when debt becomes due — factual question requiring adequate evidence and often oral evidence. Legal Proceedings Act — statutory six‑month notice to organ of state — requirement depends on knowledge of debtor and facts giving rise to claim. Civil procedure — Uniform Rule 6(5)(d)(iii) and 6(5)(g) — where affidavits are inadequate, court may refer issues for oral evidence to ensure just and expeditious decision. Burden on parties — applicant must place sufficient facts in affidavits and respondent must support plea of prescription with factual material (e.g., records).
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6 May 2014 |
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Ambiguous medical evidence and failure to subpoena the doctor undermined the State’s case; conviction set aside.
Criminal law – self-defence – road-rage shooting – mutually destructive versions – medical report ambiguity – duty to call medical witness (s 186 CPA) where evidence essential to just decision – accused entitled to acquittal if version reasonably possibly true.
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2 May 2014 |
