|
Citation
|
Judgment date
|
| May 2014 |
|
|
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.
|
19 May 2014 |
|
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.
|
19 May 2014 |
|
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).
|
15 May 2014 |
|
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.
|
14 May 2014 |
|
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).
|
6 May 2014 |
|
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.
|
2 May 2014 |
| April 2014 |
|
|
The appellant’s isolated remark did not amount to active association sufficient for a common-purpose murder conviction.
Criminal law – common purpose – active association and mens rea – participatory conduct must be proximate and significant to the execution of the crime; mere words or moral support insufficient to establish liability on common-purpose murder.
|
17 April 2014 |
|
Reported
Decisions to discontinue prosecutions are reviewable under legality (not PAJA); police disciplinary reversals are reviewable under PAJA.
Prosecutorial discretion – decisions to discontinue prosecutions – reviewable under principle of legality (not PAJA); Special DPP statutory duty to act "in consultation with" relevant DPP (concurrence required); police disciplinary terminations – administrative action reviewable under PAJA; separation of powers – courts may not issue mandatory orders compelling prosecutions or disciplinary action; locus standi – public-interest organisation permitted to seek review.
|
17 April 2014 |
|
Claim in lex furtiva dismissed for failure to prove existence, identification and disposal of secretly held assets.
Property law – lex furtiva/condictio furtiva and actio ad exhibendum – requirements for recovery: proof of existence, co-ownership, possession and disposal (or concealment) with knowledge or bad faith; Evidence – credibility and corroboration of sole witness; Civil procedure – separation of issues and need for identification/quantification of subject matter; Costs – sanctions for overlong record and non-compliance with practice directions.
|
16 April 2014 |
|
Section 28 of LUPO vests public streets in the local authority without compensation and does not constitute expropriation.
Land use planning – s 28 LUPO – ownership of public streets and public places vests in local authority on confirmation of subdivision without compensation where based on normal need or policy – s 28 not an expropriation power – aggrieved owners must seek appeal or review remedies – Helderberg majority interpretation binding.
|
16 April 2014 |
|
Reported
An extra‑curial admission by one accused is not admissible against a co‑accused; convictions based solely on it must be set aside.
Criminal evidence – hearsay (Law of Evidence Amendment Act 45 of 1988 s 3) – extra‑curial admissions/confessions of one accused are not admissible against co‑accused; s 3(2) preserves exclusions other than hearsay; protection of fair‑trial and cross‑examination rights; S v Ndhlovu reconsidered.
|
16 April 2014 |
|
Reported
A claim form must be read with supporting documents; contradictory form entries do not automatically invalidate an unidentified‑vehicle claim.
Road Accident Fund — Claims process — s 17(1)(a) v s 17(1)(b) — statutory claim form to be read with accompanying affidavits and documents; substantial compliance sufficient where category of claim can be determined; Fund obliged to make minimal enquiries before repudiating — regulation 2(3) (two‑year rule) not automatically fatal where supporting documents disclose unidentified vehicle.
|
16 April 2014 |
|
Appeal succeeded: murder conviction substituted with culpable homicide due to putative private defence excluding intention.
Criminal law – Private defence and putative private defence – subjective belief excluding dolus – conversion of murder to culpable homicide. Evidence – Ballistics and gunpowder residue corroborating proximity and sequence of shots. Appellate review – material misdirection by trial court justifies overturning factual findings. Sentencing – suspended custodial sentence appropriate on mitigation where conviction reduced.
|
14 April 2014 |
|
Reported
Where no evidence establishes foreseeability or causation, absolution from the instance for dependants’ loss of support is appropriate.
Delict – dependants’ action for loss of support – necessity to prove fault, wrongfulness, foreseeability and causation – absolution from instance appropriate where no evidence led. Pleadings – limited admissions cannot be extended by inference to admit liability for different consequences (suicide) absent evidence. Onus – claimant must establish Aquilian elements on a balance of probabilities; conjectural inferences insufficient.
|
2 April 2014 |
|
Reported
A lessor may validly cancel a lease after winding‑up presentation if an enforceable contractual right to cancel exists at cancellation time.
Insolvency law; s 348 Companies Act – retroactive commencement of winding‑up and concursus creditorum; uncompleted contracts – lease remains in force; lex commissoria – enforceability after presentation of winding‑up; s 37 Insolvency Act – liquidator’s election to continue or determine lease; cancellation valid if effective at time of exercise.
|
1 April 2014 |
|
Reported
Applicant entitled to a court‑controlled two‑stage inquiry into adequacy and then accuracy of accounts; appeal upheld.
Civil procedure — appealability of interlocutory orders: finality in effect; Accounting — right to a full and proper account; Procedure — court‑directed two‑stage debatement (adequacy first, then accuracy); Examination under oath of respondents; Remedies for non‑compliance and adverse inferences; Costs including costs of two counsel.
|
1 April 2014 |
|
Reported
Appellant’s convictions for assault and crimen injuria upheld: single-witness evidence and medical corroboration found sufficient.
Criminal law — single-witness evidence — cautionary approach; Browne v Dunn — importance of confronting witnesses with contradictions; corroboration by medical evidence; assessment of inherent probabilities; crimen injuria — racial slur as impairment of dignity.
|
1 April 2014 |
|
Reported
A civil marriage contracted while the man is a partner in a subsisting customary union is void.
Family law – customary marriage – registration certificate as prima facie proof of customary marriage – may be impeached for fraud but not without countervailing evidence. Statutory construction – s 22(1) Black Administration Act and s 1 Marriage and Matrimonial Property Law Amendment Act – civil marriage contracted during subsistence of customary union is void. Civil procedure – appellate review; consequence of inadequate record preparation and illegible documents.
|
1 April 2014 |
| March 2014 |
|
|
Reported
The appellant supermarket was liable for a shopper’s slip due to negligent cleaning and inadequate warning signage.
Delict — negligence — shopkeeper’s duty to keep premises safe; foreseeability of harm from routine mopping; adequacy of cleaning systems and warning signage; limits of independent-contractor defence where no proven contract.
|
31 March 2014 |
|
Reported
Mandatory court orders directing municipalities to repair infrastructure and impose flat water tariffs violated legality and separation of powers.
Local government — Water services — Municipal executive and legislative functions — Repair and replacement of reticulation infrastructure and tariff-setting fall within municipal competence; judicial mandamus cannot usurp statutory tariff-setting and executive planning functions — Systems Act s74; Water Services Act; principle of legality; separation of powers.
|
31 March 2014 |
|
Reported
Pre-trial custody is a relevant, non-mechanical factor when assessing deviation from prescribed minimum sentences.
Criminal law – Sentencing – Minimum sentences – Pre-trial detention as factor in assessing substantial and compelling circumstances; no mechanical rule of thumb for crediting awaiting-trial custody; sentencing courts must assess proportionality in all the circumstances. Criminal law – Non-parole orders – exceptional and to be made with caution. Aggravating factors (planned, for financial gain, politically motivated killing) justify substantial custodial sentence.
|
31 March 2014 |
|
Conviction for rape of a 12-year-old confirmed; 39-year sentence reduced to 15 years after balancing aggravating and mitigating factors.
Criminal law — Rape involving a child under 16 — Conviction upheld where accused's account implausible and inconsistent with medical evidence; Sentencing — appellate interference warranted where sentence is disturbingly inappropriate; Balance of triad — aggravating (victim's age, home invasion, trauma) and mitigating (offender's youth, background, lack of previous convictions) factors.
|
31 March 2014 |
|
Reported
Reservation of ownership in genuine floor-plan finance agreements upheld; purchaser failed to prove simulation or estoppel.
Property law – movable property – supplier and floor-plan finance agreements reserving ownership as security; simulation (fraudem legis) – test: commercial sense and genuine intention; estoppel — indicia of dominium and reliance required.
|
31 March 2014 |
|
Whether the minimum-sentence warning was given and whether a 40-year sentence for a domestic-violence murder was startlingly inappropriate.
Criminal law – Sentence – Minimum-sentence provisions – General Law Amendment Act 105 of 1997 – warning to accused as to applicability; Sentencing – duty to balance aggravating and mitigating factors (the triad) – over-emphasis on deterrence a misdirection; Domestic-violence murder – brutal assault, prior convictions and lack of remorse aggravating; appellate interference by substitution where sentence startlingly inappropriate.
|
31 March 2014 |
|
Co-accused statements were inadmissible or inconclusive; State failed to prove appellants' guilt beyond reasonable doubt.
Criminal law – Evidence – Admissibility of co-accused statements to magistrate and police – Necessity of clear identification and proper statutory basis (s 219 CPA; s 3(1) Law of Evidence Amendment Act). Criminal procedure – Trial-within-a-trial – caution in admitting ambiguous confessions and hearsay. Evidence – Prohibition on using investigating officer’s speculative identification of unnamed persons in another's statement. Criminal law – Failure to testify – cannot be prejudicial where State has not proved a prima facie case.
|
31 March 2014 |
|
Reported
Appeal struck after settlement; postponement to annex underlying agreements is interlocutory and not appealable.
Procedure – Appealability and mootness – s 21A(1) Supreme Court Act – court will not hear appeals that have no practical effect between parties; Procedure – Simple summons – whether written agreements must be annexed to summons (Uniform Rule 17(2)(b) and Form 9) – matter of practice and rule-making for the Rules Board; Civil procedure – interlocutory postponement orders to permit plaintiff to augment papers are not appealable.
|
28 March 2014 |
|
Reported
Whether a suspensive condition was fulfilled timeously depends on whether the agreement was "concluded" on signature or on board approval.
Contract – suspensive condition – clause requiring written notice of board approval within seven business days after contract is "concluded" – construction of "concluded" as signature versus board approval. Agency/authority – signatories' authority to sign versus to bind – inchoate agreement subject to suspensive condition. Termination – non-fulfilment of suspensive condition within time leads to lapse of agreement; no claim arises. Alternative defences – waiver and estoppel based on conduct rejected. Dissent – differing construction would have upheld claim and remitted quantum for damages.
|
28 March 2014 |
|
Confused, contradictory evidence and trial irregularities rendered the murder conviction unsafe and were set aside.
Criminal law – murder – safety of conviction where witness accounts are confused and contradictory; trial procedure – judicial intervention and denial of proper cross‑examination may affect fairness; insufficiency of evidence to sustain conviction.
|
28 March 2014 |
|
A repudiating party cannot rely on contractual terms to its advantage; innocent party’s performance may be suspended where cooperation is prevented.
Contract — repudiation; election not to accept repudiation; suspension or excuse of innocent party’s obligations where performance depends on repudiator’s cooperation; resolutive time clause; nemo potest proficere ex suo delicto (no one may profit from own wrong).
|
28 March 2014 |
|
Reported
An unlawful, biased tender award obtained by fronting and fraud was set aside and the contract declared void; re-tendering ordered.
Administrative law – Tender awards – Review under PAJA – Award set aside where successful tenderers failed to meet prescribed grading, made false representations and engaged in fronting; adjudicating municipality biased – Appropriate remedy under s 8 PAJA: contract declared void ab initio and re-tendering ordered – Costs against state and successful tenderers on attorney-and-client scale where conduct was reprehensible.
|
28 March 2014 |
|
Reported
Liquidators may sue nomine officio and recover post‑winding‑up payments void under s341(2) of the Companies Act.
Companies law – winding‑up – liquidator’s locus standi – liquidator may sue nomine officio; Companies Act s386(4)(a), s386(5).; Insolvency – dispositions after commencement of winding‑up void – Companies Act s341(2); recovery by liquidator. ; Procedure – motion proceedings appropriate where no real disputes of fact on solvency; costs – sanction for flagrantly non‑compliant heads of argument.
|
28 March 2014 |
|
Reported
Taxpayer may litigate assessments based on its own incorrect return; several transactions were capital, with two penalties remitted.
Tax — objection/appellate route permissible even where assessment based on taxpayer’s erroneous return — taxpayer bears onus to prove incorrect return; Income Tax — revenue v capital expenditure — rescue payments capital not deductible; Capital Gains Tax — disposal of mineral/right interests and JV interests taxable; Travel expenses — apportionment between capital and revenue; s 76 penalties — discretion to remit, partial remission ordered.
|
28 March 2014 |
|
Reported
Convictions set aside where police custody of seized animal was lawful, arrests unfounded and trial of unrepresented accused unfair.
Criminal procedure – custody of exhibits after seizure – s 30(c) CPA; Nature Conservation Ordinance – ownership and forfeiture of seized animals; Theft – requirement of unlawful possession and criminal intent; Defeating/obstructing administration of justice – bona fide belief as defence; Fair trial – duties of magistrate to unrepresented accused; Prosecutorial duty – objective presentation of facts and concession of flawed convictions.
|
28 March 2014 |
|
Reported
Appeal dismissed: Commission’s lineage finding was rational and did not ignore relevant evidence; review threshold is rationality.
Administrative law – PAJA s 6(2) – review threshold is rationality; traditional leadership – determination of existence and lineage of kingship; relevance and consideration of historical/customary evidence; limits on declaratory relief regarding appointment of a king.
|
28 March 2014 |
|
Life sentence for rape of a 13‑year‑old upheld; appellant’s personal circumstances not substantial and compelling.
Criminal law – sentencing – section 51 Criminal Law Amendment Act – minimum sentence of life imprisonment for rape of a child; substantial and compelling circumstances; victim impact evidence in sentencing; balancing offender’s personal circumstances against community protection and deterrence.
|
28 March 2014 |
|
A grandchild may inherit per stirpes under a fideicommissum despite a predeceased parent absent contrary testamentary intent.
Succession – testamentary fideicommissum – fideicommissum multiplex – survivorship implication does not apply universally; death of named fideicommissary before vesting accelerates interest to substitute; principle of representation (per stirpes) and presumption against disinheritance govern interpretation; application of Immovable Property Act limits to generations.
|
28 March 2014 |
|
SCA set aside misdirected sentences for rape and culpable homicide, substituting an effective 25-year term and ante-dating it.
Sentencing — appellate interference where trial court misdirects in weighing remorse and irrelevant factors; improper reliance on unsupported community reaction; previous convictions over ten years old not aggravating; concurrent sentencing for offences of same transaction; ante-dating of sentence.
|
28 March 2014 |
|
Reported
A corporate deponent may verify summary judgment affidavits from company records; first‑hand knowledge of every fact not required.
Civil procedure – Summary judgment – Rule 32(2) – Deponent for corporate plaintiff may rely on company records to acquire 'personal knowledge' and 'swear positively to the facts'. Summary judgment – First‑hand knowledge of every fact not required; absence of signing certificates or attendance at contracting not fatal. Summary judgment – Requirement that defendant disclose bona fide and sustainable defence on the papers.
|
28 March 2014 |
|
Reported
Whether counsel’s strategy breached the applicant’s fair-trial rights and whether conduct amounted to dolus eventualis or culpable homicide.
Criminal law – fair trial and legal representation – alleged deviation of counsel from client’s instructions; Criminal law – dolus eventualis – subjective foresight and reconciliation; Distinction between murder (dolus eventualis) and culpable homicide; Sentencing – balancing triad, professional driver aggravation, emergency/necessity mitigation.
|
28 March 2014 |
|
Whether an oral undertaking to render and debate an account constituted a binding contractual variation.
Contract – Variation by oral undertaking – whether an oral undertaking to render and debate an account constituted a binding variation of the written agreement. Remedies – Account and debatement – requirements under Doyle v Fleet Motors (right to account; contractual terms bearing on account; failure to render account). Evidence and credibility – subsequent conduct, correspondence and admissions as proof of contractual obligation. Provisional or in‑principle agreements – distinction between binding variation and exploratory negotiations.
|
28 March 2014 |
|
Minimum-sentence provisions apply to an unplanned, emotional murder; 15-year minimum imposed, assault reduced to two years concurrently.
Criminal law – Sentence – Minimum sentences under s 51(2)(a) read with Part II of Schedule 2 – Crime of passion; first offender status where prior convictions are not listed in Schedule 2; substantial and compelling circumstances requirement; concurrent sentencing and antedating under s 282 CPA.
|
27 March 2014 |
|
Failure to notify an unrepresented accused of statutory minimum sentences vitiates prescribed life sentences and warrants substitution.
Criminal law – sentencing – mandatory minimum sentences under Criminal Law Amendment Act – where State intends to rely on minimum sentence regime accused (particularly if unrepresented) must be given timely notice (charge sheet or otherwise) to ensure a fair trial (S v Ndlovu). Rape – prescribed minimum sentence – failure to inform accused of minimum sentence regime requires setting aside prescribed life sentences and substitution with appropriate determinate terms.
|
27 March 2014 |
|
Delay, rehabilitation and credit for time served do not automatically preclude a reduced custodial sentence.
Criminal law – sentence – interference on appeal – delay in appeal as exceptional circumstance – rehabilitation and credit for time served – appropriateness of direct imprisonment under s 276(1)(i) versus non-custodial measures under s 276(1)(h).
|
27 March 2014 |
|
Unreliable identification and improperly admitted medical evidence, plus lack of DNA testing, required setting aside rape convictions.
Criminal law – Rape – Child identification – Prompted/non‑spontaneous identification undermining reliability; Medical evidence inadmissible where examining doctor absent and no s212(4)(a) affidavit produced; Failure to obtain DNA samples in sexual‑assault investigations criticised.
|
27 March 2014 |
|
Reported
Condonation refused: inadequate explanation and no prospects of success; third‑party payments did not defeat recurring levy creditor's locus standi.
Condonation – failure to file heads of argument – inadequate explanation and lack of prospects of success; Winding‑up – recurring sectional title levies – body corporate as prospective creditor (vinculum juris); Third‑party payments – relevance of source in assessing debtor’s solvency and creditworthiness; Insolvency – liabilities exceeding assets and recurring obligations.
|
26 March 2014 |
|
Reported
Conveyancer must repay deposit and transfer duty after sale lapses; seller cannot keep deposit under cancellation clause.
Sale of immovable property – suspensive condition for financing – consequences of non-fulfilment – refund of deposit. Conveyancing attorney – holding of purchase monies and transfer duty – trustee/holding function and obligation to repay when transfer does not occur. Contractual cancellation clause – extent to which seller may ‘keep’ amounts paid when monies were paid to conveyancer in trust. Interest – appropriate commencement dates and rates for interest on deposit and on refunded transfer duty. Costs – party instructing conveyancer not to repay funds liable for costs, including two counsel, on attorney-and-client scale.
|
26 March 2014 |
|
Reported
Excluded large juristic‑person credit agreements are not void for non‑registration; in duplum applies and is suspended pendente lite.
National Credit Act – scope and exclusions – Chapter 5 (s 89) applies only to agreements to which the NCA applies; unregistered credit provider does not void an excluded large juristic‑person agreement. Contract interpretation – interest v profit‑share – clause construed as interest. In duplum rule – accrued interest capped at capital; suspension pendente lite (Oneanate) permits interest to run again once proceedings commenced; rule applies to sureties as well. Mezzanine financing – commercial context recognised but does not displace legal principles.
|
25 March 2014 |
|
Ambiguous antenuptial contract held void for vagueness; marriage therefore in community of property.
Matrimonial property — Antenuptial contract — Interpretation — Contradictory and incoherent clauses rendering contract void for vagueness — Accrual system and s 6 declarations — Rectification unavailable without common continuing intention.
|
24 March 2014 |
|
Reported
Life sentence on appeal upheld; no substantial and compelling circumstances justified departure from prescribed minimum.
Criminal law – Sentencing – Prescribed minimum sentences – Rape of child by parent – whether substantial and compelling circumstances justify departure from life imprisonment under s 51(1) and Schedule 2. Sentencing considerations – lack of remorse, trauma to child witnesses, medical evidence of injury, first‑offender status. Precedent – S v PB and emphasis on deterrence and protection of children.
|
20 March 2014 |
|
Reported
Convictions for attempted rape and child rape upheld; sentences recalibrated after trial court’s material misdirection.
Criminal law – Attempted rape – stage of attempt reached once assault is committed with intent to have intercourse against will (R v B). Criminal law – Rape of a child – circumstantial and medical evidence (vaginal bleeding; post‑mortem) may support inference of penetration. Sentencing – Material misdirection by trial court on cumulative effect of concurrent sentences permits appellate court to reconsider sentences. Sentencing – Prescribed minimum life imprisonment for rape of young child; no substantial and compelling circumstances shown. Appeals – Appellate court may not increase a sentence where the State did not seek leave to appeal.
|
20 March 2014 |
