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Citation
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Judgment date
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| 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 |
| August 2014 |
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Reported
An appellate court set aside a fraud finding made without a proper hearing and ordered an RAF s17(4)(a) undertaking and costs on magistrates’ scale.
Judicial procedure — natural justice — impropriety of making adverse findings after informal discussions in chambers without a hearing; Allegations of fraud — requirement of clear and convincing evidence before drawing such inferences from court file documents; Road Accident Fund — s 17(4)(a) undertaking for future medical costs; Costs — disallowance and referral to professional bodies set aside where findings unsupported.
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29 August 2014 |
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Post‑conviction medical evidence admitted on appeal can overturn convictions when it materially undermines identification.
Criminal appeal – Further evidence on appeal – De Jager requirements for admitting subsequent evidence; medical evidence (HSV‑2) as corroboration; whether to admit affidavits on appeal or remit for oral evidence; effect of post‑conviction negative blood test on identification and conviction.
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29 August 2014 |
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Reported
Where no regulations exist under s59(2), the power may be exercised, but dismissal procedure must be procedurally fair.
Defence Act s 59(2) – requirement of regulations – 'any applicable regulations' not a precondition; disciplinary procedure – right to fair procedure, adequate notice of charges and reasons, opportunity for trade-union assistance; security-risk allegations – must be substantiated and not used oppressively; remedy – declaratory relief and costs.
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28 August 2014 |
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Reported
Court orders disclosure of recordings and internal prosecutorial documents subject to limited confidentiality safeguards.
Judicial review and disclosure — enforcement of SCA order — scope of confidentiality for prosecutorial records — electronic/audio recordings and transcripts compellable — internal memoranda subject to limited disclosure and independent review — public interest in prosecutorial transparency; costs against prosecuting authority for obstructive conduct.
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28 August 2014 |
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Appeal dismissed as academic under s 21A because environmental authorisation and available grey-water rendered the sought relief nugatory.
• Constitutional and statutory procedure – Supreme Court Act s 21A – dismissal of appeals that have become academic or would have no practical effect. • Environmental law – environmental authorisation restricting irrigation to estate-generated grey-water – effect of prior judgment. • Costs – award of costs including costs of two counsel where issues are complex though concession made at hearing.
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19 August 2014 |
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Reported
Regulations increasing security industry levies set aside after Authority materially erred in law and failed to fairly consult industry.
Administrative law — review under PAJA of regulations increasing levies; procedural fairness — adequacy of notice-and-comment consultation; error of law by decision‑maker — misconstruction of empowering statute permitting differentiation of fees; materiality of legal error where it affects outcome; Minister’s decision vitiated by legal and factual misinformation; relief — setting aside of amended regulations; costs (including two counsel).
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15 August 2014 |
| July 2014 |
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NEC resolutions taken with a non-elected participant were invalid; disciplinary removal of the applicant set aside.
Political party governance – Constitution binds internal organs – NEC composition and election – Participation by a non-elected person (stranger) invalidates NEC meeting – Decisions taken by improperly constituted NEC ultra vires and reviewable – Disciplinary outcomes and subsequent resolutions set aside; costs against those who acted without authority.
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31 July 2014 |
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Arbitration order enforced; jurisdiction and award upheld; litigation funder held dominus litis and ordered to pay costs.
Arbitration — jurisdiction where referral agreement made an order of court; waiver by participation; review under s 33 — misconduct/gross irregularity; Rule 42 rescission for common mistake; litigation funding — dominus litis and costs liability.
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31 July 2014 |
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Credibility findings upheld; racial slur held to constitute crimen iniuria and assault.
Criminal law – crimen iniuria and assault – use of racial slur as an unlawful, dignity‑injuring act; evidence – evaluation of mutually destructive versions – assessment of credibility, probabilities and improbabilities; statement discrepancies – materiality and admissibility; appellate review of trial court’s credibility findings.
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15 July 2014 |
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Reported
State must prove unlawful possession before disposing seized goods; wrongful disposal permits actio ad exhibendum damages.
Criminal procedure – search and seizure – s 20 and s 31(1) Criminal Procedure Act – onus on State to prove possession unlawful before disposal; Second-Hand Goods Act non‑compliance does not per se divest lawful possession; wrongful disposal entitles owner to actio ad exhibendum damages; motion proceedings permissible where liability is legal and quantum undisputed.
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1 July 2014 |
| June 2014 |
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A servitude-holder who knows and acknowledges the new owner and holds the title deed cannot rely on a non-production clause to avoid cancellation for non-payment.
Servitude law; interpretation of protection clause (clause 9) requiring production of title deed; validity of cancellation for non-payment (clause 3); effect of servitude-holder's acknowledgement of transferee and possession of title deed; late tender and payment to prior owner ineffective to defeat cancellation.
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26 June 2014 |
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Reported
Applicant failed to show proper excuse, valid defence or that statutory notice requirements applied; appeal dismissed with costs.
Practice — rescission of default judgment — Uniform Rule 31(2)(b) — requirements: reasonable explanation, bona fides, prima facie defence; Service — Uniform Rules and s 115(3) Municipal Systems Act — service on person in attendance at municipal manager’s office effective; Institution of Legal Proceedings Against Certain Organs of State Act — definition of "debt" confined to liabilities to pay damages — Act not applicable to contractual payment claim.
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26 June 2014 |
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Reported
A regional land claims commissioner cannot reverse a final s11(4) preclusion decision; re-opening the claim was unlawful.
Restitution of Land Rights Act – s 11(1), s 11(4) and s 11A – finality of s 11(4) preclusion decisions – functus officio – administrative law – doctrine of legality – procedural fairness under PAJA – review and setting aside of unlawful re-opening of land claims.
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13 June 2014 |
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Reported
Whether additional tax and 200% penalties were justified where SARS misread accounting records and taxpayer provided explanatory evidence.
Tax — Income Tax and VAT — burden of proof on taxpayer in appeals (s 82 IT Act; s 37 VAT Act) — SARS’ assessments unsustainable where based on misconstruction of accounting system — s 16(2)(c) does not import supplier declaration requirement from s 20(8) — internal transfers, demo stock and cancelled trade‑ins not taxable supplies — penalties require proof of intent to evade (s 76 IT Act; s 60 VAT Act).
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12 June 2014 |
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Reported
A court may not raise and decide new legal issues mero motu or deny agreed oral evidence resolving factual disputes.
Practice — applications and motions — dispute of fact referred for oral evidence — court not entitled to refuse agreed oral evidence and decide mero motu new legal issues; mandament van spolie — requirement of peaceful, undisturbed physical possession for immovable property — PIE — occupation requires factual possession, not merely completion or intent to occupy; judicial restraint in raising issues.
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4 June 2014 |
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Reported
Municipality failed proper public participation, but Rates Act/regulations do not forbid higher business than residential property rates.
Municipal finance and rates — statutory public participation and publication obligations in budget process; Municipal Property Rates Act s19(1)(b) and regulations — scope of prescribed rate ratios; whether regulations limit municipal ability to levy higher business rates than residential; legality review of municipal decisions; duties of state deponents and costs in public-interest litigation.
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4 June 2014 |
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Accomplice testimony corroborated by circumstantial facts upheld murder conviction; theft and firearms convictions overturned.
Criminal law – murder – conviction on evidence of accomplice – corroboration required and found via independent circumstantial facts; standards for assessing accused's version; insufficient proof for theft and firearms convictions.
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4 June 2014 |
| 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 |
