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Citation
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Judgment date
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| September 2014 |
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Reported
Court enforces church arbitration clause, refuses secular adjudication of doctrinal dispute; appeal dismissed.
Arbitration — validity and enforcement of arbitration agreement under Arbitration Act s 3(2); voluntary association/religious body — internal disciplinary procedure and convener’s power to conclude arbitration agreement; doctrine of entanglement — avoidance of secular adjudication of core doctrinal and governance disputes; procedural complaints — delay, bias, legal representation and waiver of rights; scope for judicial review limited to legality.
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29 September 2014 |
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Reported
No binding contract where tender documents prescribe a formal acceptance procedure that was not followed.
Contract/Tender law – Mode of acceptance in tender documents – form of offer and acceptance and issuance of final contract required – failure to comply prevents creation of vinculum juris; Alternative tender does not displace general conditions; Municipal procurement and supply‑chain formalities binding; Internal irregularities/unauthorised acts do not create contract where formal acceptance absent.
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29 September 2014 |
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Circumstantial and medical evidence supported inferring the appellant killed the deceased; appeal dismissed.
Criminal law – murder (dolus eventualis); circumstantial evidence – drawing reasonable inferences (R v Blom) – expert post‑mortem evidence excludes suicide; credibility findings; s 174 discharge discretion.
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29 September 2014 |
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Reported
State may charge under s3 despite filed‑off serial number; ballistic report not always required to prove ammunition.
Firearms Control Act ss 3 and 4 – possession of firearm with altered/removed serial number – choice of charge under s 3 or s 4(1)(f)(iv). Prosecutorial discretion – dominus litis – courts will not ordinarily interfere with charge preference absent exceptional circumstances. Proof of ammunition – ballistic report helpful but not invariably required; admissible evidence of ammunition found in a working firearm can suffice.
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29 September 2014 |
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Reported
SCA: s16(1)(b) requires special leave for appeals from high‑court decisions taken on appeal; one sentence reduced, other leave refused.
Criminal procedure – appeals from high court sitting as court of appeal – Superior Courts Act 10 of 2013 s 16(1)(b) requires special leave from the SCA for appeals against high‑court decisions taken on appeal to it. Criminal procedure – s 309C petitions – refusal by high court is a decision on appeal and appeal to SCA requires special leave. Appellate review of sentence – interference only where misdirection, failure of justice, or sentence so disproportionate no reasonable court could impose it. Procedure – SCA Rule 6 and requirement to demonstrate reasonable prospects and special circumstances for special leave.
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29 September 2014 |
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Reported
Whether a community may use a company as its section 104 MPRDA vehicle and whether the Tribal Council is the community’s authorised representative.
Mineral law – Preferent community prospecting rights – Whether a corporate vehicle may act as a community under s 104 MPRDA – control, shareholding and community benefit requirements. Traditional leadership – Recognition and locus of traditional/tribal council – interplay of TLGFA transitional provisions and provincial legislation. Administrative law – Procedural fairness – duty to consult communities and to heed Constitutional Court guidance when granting prospecting rights. Company/shareholders – Protective veto and anti‑dilution measures can ensure effective community control for section 104 purposes.
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26 September 2014 |
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Reported
High court erred in replacing a carefully reasoned non‑custodial sentence with direct imprisonment without factual or legal justification.
Criminal law – Sentence – Fraud – Appropriateness of correctional supervision combined with suspended imprisonment – Appellate interference only where material misdirection or shockingly inappropriate sentence; speculative reasoning by appeal court improper.
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26 September 2014 |
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Reported
Where parties settle all disputes, an appeal that would have no practical effect must be dismissed under s16(2)(a)(i).
Superior Courts Act s 16(2)(a)(i) – dismissal of appeal when decision sought will have no practical effect; mootness and absence of lis where parties settle; limited discretion to hear academic appeals only in narrow public-law circumstances; deference to institutional decision-making on allocation of state-funded legal aid.
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26 September 2014 |
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Reported
Whether pressure-care that risked life could be required to prevent pressure sores in a haemodynamically unstable patient.
Medical negligence – pressure sores in critically ill patient – causation and avoidability – evaluation of conflicting expert opinion – application of Bolam refined by Bolitho (logical basis and weighing comparative risks and benefits).
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26 September 2014 |
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A charge-sheet error citing the wrong minimum-sentence subsection does not automatically bar imposition of life imprisonment.
Criminal Law – Minimum sentences – s 51(1) v s 51(2) of Criminal Law Amendment Act – charge-sheet misdescription – effect on fair trial – prejudice required to vitiate sentence; life imprisonment may be imposed where facts invoke Part I despite clerical/statutory reference error.
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26 September 2014 |
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Youthfulness and first‑offender status rendered life imprisonment disproportionate for rape of a six‑year‑old; sentence reduced to 20 years.
Criminal law – Sentencing – Rape of a child under 16 – Application of s 51 Criminal Law Amendment Act (minimum sentences) – Duty to consider substantial and compelling circumstances and proportionality – Youthfulness and first‑offender status as mitigating factors – Appellate substitution of sentence where remittal impractical.
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26 September 2014 |
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Reported
Majority: failure to secure an informed waiver of legal representation and assist an undefended accused vitiated the trial.
Criminal law – right to legal representation – validity of waiver by unrepresented accused; assistance to undefended accused with cross‑examination; admission of medical report without viva voce evidence; prejudice and vitiation of trial; high court's duty to ensure lower court proceedings were 'in accordance with justice'.
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26 September 2014 |
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Inadequate s162/s164 questioning and inconsistent, uncorroborated evidence rendered the child testimony inadmissible; conviction set aside.
Criminal law — Evidence — Child witnesses — Competence and admissibility — s162–s164 Criminal Procedure Act — Presiding officer’s duty to enquire and properly admonish — Inadequate questioning renders testimony inadmissible; contradictions and absent medical testimony render conviction unsafe.
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26 September 2014 |
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No duty to forewarn accused of intent to exceed statutory minimum; 17‑year sentence for aggravated robbery upheld.
Criminal law – Sentencing – Robbery with aggravating circumstances – No duty to forewarn accused of intention to exceed statutory minimum – Adequate reasons required to depart from minimum – 17 years’ imprisonment upheld.
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26 September 2014 |
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Reported
Asylum seekers and refugees lawfully present may apply for trading licences; closures under valid permits are unlawful.
Refugee and asylum-seeker rights – right to seek employment and self-employment – interaction of s22 Constitution and s27(f) Refugees Act – Lebowa Business Act, Businesses Act and municipal land-use scheme do not bar non-citizens from applying for trading licences – closures and confiscations under policing operations unlawful – dignity and international obligations considered.
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26 September 2014 |
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Forensic social worker’s evaluative evidence upheld a child’s account to sustain one indecent-assault conviction, but not another.
Criminal law – indecent assault – adequacy of conduct (kissing lower stomach vs deliberate exposure) to constitute indecent assault. Child sexual abuse – single child witness – role and weight of forensic social worker’s evaluative evidence beyond hearsay. Evidence – sensory descriptions (taste/texture of ejaculate) by a child as probative of sexual assault.
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26 September 2014 |
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Premature resignation from a fixed-term retention contract constitutes breach; employer may elect to claim the unpaid balance.
Contract interpretation – fixed-term employment – retention scheme – premature resignation as repudiation – employer’s election under breach clause to claim paid amounts or balance for remaining term.
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25 September 2014 |
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Long‑term incestuous rape of daughters upheld; medical and corroborative evidence supported convictions and life sentences.
Criminal law – Rape – Incestuous rape of young daughters by father – Credibility and corroboration of young witnesses; medical evidence (Form J88) – Pregnancy and termination arranged by accused as corroboration – Sentencing – application of s 51(1) Criminal Law Amendment Act 105 of 1997; substantial and compelling circumstances; failure to adduce mitigation – Procedural – mero motu grant of leave to appeal questioned.
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25 September 2014 |
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Accrual proved to defendant’s estate; accountant’s compilations admissible and cross‑examination admissions binding, award amended to R6,478,717.75.
Family law – Matrimonial Property Act 88 of 1984 – accrual claim under s 3(1); antenuptial contract – effect of excluded‑assets clause on commencement value; discovery – s 7 obligations and consequences of non‑compliance; admissibility – accountant’s compilation from discovered documents; admissions in cross‑examination binding defendant; calculation of inflated commencement value by CPI.
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25 September 2014 |
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Failure to prove the expert’s four‑hour closed‑reduction theory meant the department’s delay was not shown to cause paralysis.
But‑for (factual) causation; expert medical evidence reliability; closed reduction of cervical facet dislocation; four‑hour cut‑off theory; balance of probabilities standard; negligence and wrongfulness tied to causation.
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25 September 2014 |
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Reported
Fraudulent hunting permits and misuse of customs documents required substantial custody and a heavy fine, but a 30‑year term was disproportionate.
Environmental law (NEMBA) – restricted activities and permits – fraudulent procurement of hunting permits for illegal trade in rhino horn; Customs and Excise Act s 80(1)(i) – improper use of documents; Sentencing – weight of guilty plea, pre‑trial custody, inappropriate grouping of counts, misdirection by trial and high courts; Conservation – constitutional duty to protect biodiversity; Institutional failures in permit supervision.
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25 September 2014 |
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Sentencing appeal dismissed: insufficient mitigation and serious, planned breach of trust justified custodial sentence.
Criminal procedure – sentencing appeal – standard for appellate interference (material misdirection or striking disparity); sentencing of white‑collar offences – position of trust, planning and amount as aggravating factors; duty of accused to place sufficient mitigation evidence before court; role of restitution and remorse in mitigation.
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25 September 2014 |
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Reported
Whether the delictual action for adultery should be retained — court finds it outdated and abolishes it.
Delict – actio iniuriarum – adultery – contumelia and loss of consortium – whether cause of action should be retained – court abolishes adultery-based delictual claim as outdated; leaves open patrimonial (lex Aquilia) remedies and other marriage-related delicts.
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25 September 2014 |
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The President may refer a two-judge leave refusal only in truly exceptional circumstances; applicant’s case failed.
Superior Courts Act s 17(2)(f) – President’s power to refer two-judge decisions in 'exceptional circumstances'; meaning and strict application of 'exceptional circumstances'; limits on rehearing/re-argument; approbate and reprobate; accounting disputes not ordinarily warranting referral.
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23 September 2014 |
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Reported
Prosecutorial failure to disclose relevant information at a bail hearing can attract delictual liability; s 42 immunity unavailable for negligent omissions.
Delict – omissions – prosecutorial duty at bail hearings – duty to place all relevant information before the court; failure may be wrongful and actionable. Negligence – standard of reasonable prosecutor; foreseeability of violent conduct by accused. Causation – factual ('but for') and legal causation where inadequate disclosure leads to release and subsequent harm. Statutory immunity – s 42 NPA Act: must be pleaded; requires good faith and exercise of power with due care; does not cover negligent omissions. Quantum – psychiatric injury proven by expert evidence.
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23 September 2014 |
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Reported
Police who knowingly withhold evidence and instigate prosecution render detention unlawful and state liable.
Delict — unlawful arrest and detention; malicious prosecution — absence of reasonable grounds and animus iniuriandi; police duty to disclose material facts to prosecutor and court; constitutional right to freedom (s 12(1)(a)) — continued detention despite remand orders may remain unlawful where police misled authorities.
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23 September 2014 |
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Appeal confined to costs dismissed: no exceptional circumstances under s 21A(3); intervenor lacked requisite interest under s 35(11).
• Civil procedure – appealability of costs-only appeals – s 21A(1) & (3) Supreme Court Act – requirement of 'exceptional circumstances'.
• Restitution of Land Rights Act – s 35(11) – rescission of order – requirement that pending appeal relate to the order and that applicant be affected.
• Intervention – direct and substantial interest required to intervene in pending appeal.
• Costs – restraint in awarding costs in restitution matters to avoid deterring claims.
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22 September 2014 |
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Appellate court orders robbery sentence to run concurrently with murder sentence where offences were inextricably linked; effective term reduced to 20 years.
Criminal law – sentencing discretion – appellate interference where trial court misdirects or fails to consider cumulative effect; Concurrent sentences – offences inextricably linked by locality, time, protagonists and common intent justify concurrency; Antedating of sentence – s 282 Criminal Procedure Act 51 of 1977.
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22 September 2014 |
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Reported
A referee’s s19bis factual findings stand unless impugned by admissible evidence showing they were unreasonable, irregular or wrong.
Section 19bis (Superior Courts Act) – referee appointed to enquire into accounts – referee’s report adopted by court equates to court’s factual finding; standard of impugning: only if unreasonable, irregular or wrong. Motion proceedings – factual disputes must be raised by admissible evidence; hearsay expert reports unsupported by primary confirmatory affidavits are inadmissible. Burden on challenger to persuade court to remit or reject referee’s findings.
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22 September 2014 |
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Whether a purchaser has standing to seek a declaration and when municipal bulk contribution becomes payable under ss 48 and 63 of the Ordinance.
Administrative law; declaratory relief – standing under s 19(1)(a)(iii) – requirement of a direct and substantial interest. Town Planning and Townships Ordinance – construction of ss 48 and 63 – timing and enforceability of bulk services contributions; payment tied to implementation of scheme or transferee undertakings. Effect of municipal direction – fixes amount but not immediate payment demand.
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19 September 2014 |
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Reported
A consent order admitting creditor status under s345(1)(a) establishes a due debt and supports liquidation; punitive costs awarded.
Companies Act s 345(1)(a) — creditor status — consent agreement made an order of court admitting indebtedness — effect on locus standi and liquid debt; provisional winding-up; rebuttable presumption of insolvency; abuse of process; punitive costs (attorney-and-client including two counsel).
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19 September 2014 |
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Applying s 51 minimum-sentence provisions without timely notice to the accused is a material misdirection vitiating sentence.
Sentencing — Minimum sentences (s 51 Criminal Law Amendment Act 105 of 1997) — Requirement to give accused timely notice the State will rely on prescribed minimum — Failure to warn constitutes procedural irregularity and material misdirection — Right to fair trial (s 35) — Remittal for reconsideration and pre-sentencing report where record insufficient to impose sentence on appeal.
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19 September 2014 |
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Reported
A generically manufactured contraceptive infringes a valid, inventive divisional patent; divisional status and claim breadth upheld.
Patent law – claim construction – purposive construction from perspective of skilled formulator; scope includes any known method achieving claimed dissolution rate. Patentability – inventive step – unexpected in vivo bioavailability of rapidly dissolving, acid‑labile drospirenone not obvious; guard against hindsight and ‘obvious to try’ without reasonable expectation of success. Divisional patents (s 37) – divisional may have different/broader claims than parent if within parent disclosure; improper divisional registration challenge is generally a review matter not a ground for revocation.
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19 September 2014 |
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Reported
A PAIA judicial ‘peek’ is permitted, but s80(3)(a) cannot be used to introduce new evidence to justify withholding.
Promotion of Access to Information Act – s 80 judicial inspection (judicial ‘peek’) – s 80(3)(a) ex parte representations must relate to contents of inspected record and cannot introduce new extraneous evidence – exemptions under ss 41(1)(b)(i) and 44(1)(a) – burden of proof on public body (s 81(3)) – public interest override (s 46).
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19 September 2014 |
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Main claim defective for non-joinder and inconsistency; alternative delictual misrepresentation claim stands.
Exception; pleadings — putative customary marriage v universal partnership; non-joinder of spouse; delict — fraudulent misrepresentation; pro tanto exception; appealability of orders granting leave to amend.
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19 September 2014 |
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Appellant’s life sentence for rape set aside where charges and s 51(1) application were defective; re-sentenced to eight years.
Criminal law – fair trial – accused must be informed of charges and possible minimum sentences under s 51(1) before being tried; Rape – evaluation of identification and corroboration; Duplication of convictions – kidnapping as part of rape; Sentencing – misapplication of minimum sentence provisions and need for pre-sentencing and victim impact reports.
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19 September 2014 |
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A deferred‑payment sale with an unqualified interest clause is a credit transaction and void if the seller is unregistered under the NCA.
National Credit Act 34 of 2005 – s 8(4)(f): agreements deferring payment with interest payable on the deferred amount constitute credit transactions. Contract interpretation – unqualified interest clause read in context held to apply from inception; surrounding conduct (pleadings and account annexure) supports interpretation. Registration requirement – s 40: unregistered credit provider renders such agreement unlawful and null and void ab initio; restitution under s 89(5). Interpretative maxim (ut res magis valeat quam pereat) cannot override clear contractual meaning to avoid invalidity.
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19 September 2014 |
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Reported
Common law does not protect non‑clients from being opposed by lawyers absent confidential information.
Company law; privilege and conflicts – former‑client protection limited to possession or risk of misuse of confidential information; no extension to non‑clients or 'quasi‑clients'; inherent jurisdiction to restrain practitioners is exceptional and not engaged here; sequestration and appellant’s standing.
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19 September 2014 |
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Reported
Tribunal may order repayment where a credit provider unlawfully passes on a third‑party service fee to consumers.
National Credit Act – supplementary agreements – s 91(a) – prohibition on requiring or inducing consumer to sign supplementary agreement containing provisions unlawful if included in credit agreement. National Credit Act – service fees – regulation 44 – maximum monthly service fee – passing on third‑party transaction fee unlawful where it increases service fee above statutory maximum. Administrative process – compliance notice (s 55), Tribunal powers (s 56, s 150(h)) – Tribunal may order repayment of excess amounts charged to consumers. Contract law – parol evidence rule – extrinsic evidence cannot be used to contradict complete written memorials of agreement.
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18 September 2014 |
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Reported
A general notarial bond’s s102 preference is limited to proceeds of the hypothecated movable assets.
Insolvency Act s102 — interpretation of 'claims secured by a general mortgage bond' — preference limited to proceeds of hypothecated movables; concursus creditorum; holder of general notarial bond ranks preferently only to extent of realised movable assets; balance of claim is concurrent.
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18 September 2014 |
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Special entries (s317) are for the trial court; fresh evidence on appeal cannot replace evidence elected not to be given.
Criminal procedure – Special entry (s 317) – application must be made to trial judge; appellate court cannot make special entry. Appeals – fresh evidence – appellate court will not permit evidence on appeal that was available but electively not given at trial. Fair trial – joint representation – no conflict proved where potential conflict was canvassed and did not manifest. Sentencing – minimum‑sentence regime – substantial and compelling circumstances may justify departure; life sentence replaced by determinate term.
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18 September 2014 |
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Cession of an insurance policy as security does not deprive a consumer of the right to terminate a broker mandate and appoint an approved broker.
Finance agreements — cession of short‑term motor insurance policies as security — effect on intermediary/broker mandate; National Credit Act s 106(4) — consumer’s right to waive proposed policy on renewal; FAIS Act and Code — right to terminate provider mandate and prohibition on waivers; renewal creates new policy; cession does not vest credit provider with unqualified right to appoint broker.
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17 September 2014 |
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Reported
The respondents were negligent in maintaining an excessive speed limit at an unprotected level crossing.
Delict — Negligence — Railway speed restrictions — Reasonable foreseeability and preventability at unprotected level crossings; expert evidence and weight of Railway Safety Regulator report; operator’s duty to implement reasonable safety measures (speed reduction, booms, signage).
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17 September 2014 |
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Reported
Curatorship upheld where trustees’ governance failures, suspect contracts and conflicts posed material risk to beneficiaries.
Medical schemes — Curatorship — s 56(1) Medical Schemes Act and s 5(1) FI Act — material irregularities/good cause — improper payments to unaccredited brokers, suspect marketing/distribution contracts, conflicted trustees and obstructive conduct — less intrusive remedies inadequate — ex parte procedure permissible under FI Act.
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16 September 2014 |
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A prior final finding that a loan did not breach exchange control rules bars relitigation of its validity.
Exchange control – Regulation 10(1)(c) – permission to export capital – delegation to Reserve Bank and Exchange Control Rulings permitting remittance of proceeds. Res judicata/exceptio rei judicatae – issue estoppel – when an amended defence raising fraud relitigates the same issue. Amendment of pleadings – admissibility and relevance of late evidence on alleged loop structures. Once‑and‑for‑all rule – finality of adjudication and consequences for counterclaims.
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11 September 2014 |
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Reported
Section 35(1) COIDA does not treat the State as a single employer; component organs are separate employers.
Compensation for Occupational Injuries and Diseases Act (COIDA) – statutory interpretation of 'employer' and 'the State' – s 35(1) exclusion of actions against employers – ss 84(1) and 39(2) show multiple State employers (heads of departments, parliamentary and provincial legislature officials, local authorities) – State not a single employer for COIDA purposes.
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11 September 2014 |
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Reported
Investigating officer’s misleading presentation of identification evidence rendered subsequent remand and detention unlawfully arbitrary under s 12(1)(a).
• Criminal law – arrest – reasonable suspicion – assessment of video evidence and corroborative information.• Constitutional law – s 12(1)(a) – deprivation of freedom must be substantively justified; magistrate’s remand orders do not automatically render detention lawful.• Administrative/public‑law duty of police – obligation to place all relevant information before prosecutor and court; negligent misrepresentation can give rise to delictual liability for unlawful detention.• Delict – malicious prosecution requires subjective foresight (dolus eventualis); negligence insufficient.
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11 September 2014 |
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Reported
A special case must set out agreed facts before constitutional damages for deprivation of parental care can be adjudicated.
Special case procedure — Rule 33 requires agreed facts, legal questions and contentions; constitutional damages — claim for deprivation of parental care under s 28(1)(b) requires factual proof of parental care and infringement; remedies — assess adequacy of delictual loss-of-support remedies before awarding constitutional damages; state liability — duty, unlawfulness, causation and horizontal application under s 8; public-policy implications and interested organs of state should be heard.
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5 September 2014 |
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No binding architect’s commission arose because essential terms and conditions precedent remained unresolved; not proceeding was not repudiation.
Construction and contract law – formation of contract – conditions precedent and material terms; architect’s commission – scope, fees and BEE joint venture requirement; non-proceeding or indefinite suspension not necessarily repudiation; entitlement limited to fees for services rendered.
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3 September 2014 |
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Reported
Foster child grants paid after a death are generally deductible from loss‑of‑support awards against the applicant.
Road Accident Fund – deductibility of foster child grants from loss‑of‑support awards – principle against double compensation; social assistance grants payable due to death are deductible. Delict – compensatory principle – factual enquiry whether social grants replace lost support. Assessment of Damages Act exceptions (insurance/pensions) do not include social assistance grants.
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3 September 2014 |
