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Citation
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Judgment date
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| December 2016 |
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Leave to appeal granted where court treated two robbery counts separately and failed to credit pre-trial custody.
Sentence – minimum sentences – two robbery convictions arising from single criminal enterprise – whether counts should be treated as one for sentencing or run concurrently. Sentence – failure to afford credit/weight for substantial pre-trial custody. Leave to appeal – reasonable prospects of success where sentencing misdirected leading to manifestly excessive sentence. Use of s 19(a) Superior Courts Act to decide appeal without oral argument where outcome clear.
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21 December 2016 |
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Reported
Whether s126B(1)(b) of the National Credit Act applies retrospectively to invalidate acknowledgements reviving prescribed debts.
National Credit Act – s 126B(1)(b) – prescription of debt – whether amendment operates retrospectively to invalidate acknowledgements reviving prescribed debts; presumption against retrospectivity; role of Schedule 3 (transitional provisions); summary judgment.
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15 December 2016 |
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A holster lacking the claimed second camming surface that secures the firearm on attempted withdrawal does not infringe the patent.
Patent — claim construction — purposive interpretation of claim integers; definition and function of 'camming surface'; infringement requires presence and operation of every essential integer; hypothetical deformation irrelevant to infringement; costs where mixed success.
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15 December 2016 |
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Reported
Omission to mention minimum‑sentence Act does not automatically vitiate life sentence absent demonstrable prejudice.
Criminal law – Minimum sentences (Criminal Law Amendment Act 105 of 1997) – Failure to reference Act in charge sheet or at trial does not automatically vitiate life sentence; fairness/prejudice enquiry is fact‑based – conviction for rape of child under 16 attracts s 51(1) life sentence unless substantial and compelling circumstances shown – appellate divergence on when omission amounts to trial unfairness.
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15 December 2016 |
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Reported
Archival, archaeological and expert evidence can establish a community’s beneficial occupation and dispossession under the Restitution Act.
• Restitution of Land Rights Act – community claims – statutory definition of 'community' – shared rules, beneficial occupation and customary use.
• Admissibility and evaluation of evidence in land claims – s 30 of the Act permits hearsay and expert historical evidence; weight is a matter for the tribunal.
• Indigenous/customary rights – effect of conquest, annexation and later colonial grants; interaction with quitrent/freehold grants.
• Dispossession – subdivision/administrative processes as racially discriminatory practice or measure giving rise to restitution rights.
• Procedural and investigatory role of the Commission – flexibility in formalities of claim lodgement and validation.
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13 December 2016 |
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On these facts, issuance of a service firearm and on‑duty status did not create a sufficiently close link to impose vicarious liability.
Vicarious liability; deviation cases; Rabie two-stage test and Constitutional Court refinements (K; F); sufficiency of link between police officer’s wrongful act and employer’s business; issuance of service firearm not per se strict liability; normative considerations under the Bill of Rights (public trust, state duty to protect); evidentiary requirement of known risk factors when issuing firearms.
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9 December 2016 |
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Reported
An insolvent accused retains locus standi; POCA 'benefit' can include gross proceeds, but inadequate s18(6) enquiry requires remittal.
Prevention of Organised Crime Act 121 of 1998 – chapter 5 confiscation orders – meaning of 'benefit' – wide statutory definition may include gross proceeds of unlawful activity. POCA s 18(1) and s 18(6) – judicial discretion and procedure – where evidence is insufficient the court must call for further evidence or adjourn to determine appropriate confiscation amount. Insolvency – sequestrated accused retains locus standi if he has a reversionary/direct substantial interest and trustees elect to abide the decision. Onus – s 18 enquiry is not a motion requiring the State to discharge a true onus; presiding officer must actively direct and control the enquiry.
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9 December 2016 |
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The court referred its dismissal of special leave for reconsideration under s17(2)(f), finding exceptional circumstances may cause grave injustice.
Superior Courts Act s 17(2)(f) – referral to President for reconsideration and variation of an SCA order; exceptional circumstances and grave injustice as threshold for referral. Criminal law – common purpose doctrine and dolus eventualis – possible misapplication at trial may warrant appellate reconsideration. Procedural – condonation for late filing; requirement to lodge copies and comply with rules.
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7 December 2016 |
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Reported
Failure to agree interest rate does not invalidate contract; damages in lieu of specific performance competent when performance impossible.
Contract law – failure to agree interest rate does not invalidate contract; Prescribed Rate of Interest Act applies if no rate agreed; repudiation — election to hold to contract; damages in lieu of specific performance competent where specific performance impossible; ISEP distinguishable and not a general bar.
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6 December 2016 |
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Reported
Applicant’s death extinguished his assisted‑dying claim; appeal upheld and High Court order set aside.
Justiciability — extinguishment of personal claim by death; development of common law under s 39(2) — limits and requirements; physician‑administered euthanasia (PAE) currently constitutes murder under South African law; physician‑assisted suicide (PAS) not automatically lawful or unlawful — liability depends on causation, intention and unlawfulness (Grotjohn); lawful refusal/withdrawal of treatment and palliative care (double‑effect) distinguished from PAE/PAS; necessity of adequate factual record, procedural fairness and separation of powers; legislative role and comparative law considerations.
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6 December 2016 |
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Reported
CL|Maritime Lien|Arrest of Vessel|Piracy|Action In Rem
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6 December 2016 |
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Service of summons interrupted prescription; amending the remedy did not change the essential debt, appeal dismissed.
Prescription — interruption by service of process (s 15(1) Prescription Act 68 of 1969). Contractual remedies — cancellation with liquidated damages versus accelerated payment and possession under a single clause. Meaning of 'debt' — wide and distinct from 'cause of action'; amendment of cause of action does not necessarily create a new debt. Pleadings — amendment to cure defective cause of action permitted; proposed special plea of prescription excipiable where debt remains the same in substance.
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2 December 2016 |
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Reported
The applicant’s race-and-gender rotational appointment policy for insolvency practitioners was irrational, unconstitutional and inconsistent with creditors' interests.
Constitutional law – Equality – Remedial measures under s 9(2) – distinction between permissible targets/preferential measures and impermissible quotas – roster A4:B3:C2:D1 held rigid and unconstitutional. Insolvency law – Insolvency Act s 18(1) and s 158(2) – ministerial policy for appointments – scope and limits. Administrative law – Rationality review – lack of evidential basis, arbitrary and capricious policy. Administrative law – Fettering discretion – Master’s discretion is to be exercised in accordance with ministerial policy, but policy must itself be lawful. Principle of legality/ultra vires – policy incompatible with statutory purpose by disregarding creditors’ interests.
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2 December 2016 |
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Reported
Whether the KZN Act prohibits the applicant, as a pre‑existing licensee, from selling liquor within 500 metres of schools or religious institutions.
Liquor licensing — statutory conversion of pre‑existing licences (s 101 KZN Act) — proximity prohibition (s 48(5)(e)) applies to new licence applications, not automatic cancellation of converted pre‑existing licences; Regulation 47(1) unlawful as irrational; PAJA condonation granted; protection against retrospective extinguishment of vested licence rights.
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2 December 2016 |
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A defendant must plead facts showing a bona fide defence; investor may enforce a buy-back stipulatio alteri after valid acceptance.
Summary judgment — bona fide defence — defendant must allege facts which, if proved, will constitute a defence; Stipulatio alteri — buy-back agreement creating third‑party benefit enforceable by investor who accepted benefit; Acceptance — operative acceptance on issuance of share certificate; Business rescue — BRP affecting issuer does not novate separate third‑party buy‑back obligations.
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2 December 2016 |
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The appellant may validly promulgate hostel regulations to facilitate learners' constitutional right to basic education.
Education law – regulation-making powers of provincial MECs – s 27(1) North West Schools Act read with s 12 and s 20(1)(g) of SASA – hostels as integral to access to basic education (s 29(1)) and best interests of the child (s 28(2)) – concurrent legislative competence and conflict resolution under constitutional scheme – rationality review of regulations.
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1 December 2016 |
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Reported
Temporary-building status requires objective assessment of nature and purpose, not merely the owner’s declaration.
Local government/building control – interpretation of 'temporary building' in National Building Regulations – regulation A23 and A1(7) – objective assessment of nature, intended life and purpose required – owner’s declaration insufficient to render objectively permanent structure temporary – cellular communications mast not a temporary building.
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1 December 2016 |
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Reported
Whether the plaintiff had knowledge (actual or constructive) that required ministerial consent for sale was absent, and whether cadastral transfers were valid.
Prescription — s 12(3) Prescription Act — debt not due until creditor has knowledge of facts from which debt arises or could have acquired it by reasonable care — mere suspicion insufficient; Subdivision of Agricultural Land Act — prior written ministerial consent required for sale/lease of portions — historical cadastral units exempt; Transfer of immovable property — abstract theory applies where delivery by registration plus real agreement; imputation of agent’s knowledge to principal where agent is authorised.
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1 December 2016 |
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Reported
Double criminality for extradition is assessed at the request date; a s 10(2) certificate stating evidence 'justifies' prosecution is sufficient.
Extradition — double criminality — temporal application assessed at extradition request date; Extradition Act s 10(2) certificate — wording 'justify' acceptable; extradition enquiry limited to whether conduct is extraditable and whether evidence warrants prosecution abroad.
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1 December 2016 |
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Reported
Statutory penalty ranges do not limit sentencing discretion; appellate court reduced an unduly severe corruption sentence after misdirection.
Criminal law – Corruption – Offence by public officer – Soliciting and accepting gratification; sentencing principles – statutory penalty range does not fetter judicial discretion; deterrence, prevention, rehabilitation and retribution must be balanced; appellate intervention warranted where trial court materially misdirects itself.
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1 December 2016 |
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Appellants' publications were not shown to be defamatory; respondents failed to plead special circumstances for innuendo.
Defamation — meaning and pleading — distinction between primary meaning and innuendo (secondary meaning) — necessity to plead special circumstances to rely on innuendo — qualifier words and references to investigations may negate an actionable defamatory assertion — quasi-innuendo and pleaded meanings binding plaintiff.
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1 December 2016 |
| November 2016 |
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Reported
Confessions and acknowledgements are admissible in civil cases absent legally recognised duress or contra bonos mores.
Evidence — civil admissibility of videotaped confessions and acknowledgements previously excluded in criminal proceedings; duress — threats of prosecution/publicity and whether contra bonos mores or extortion; enforceability of acknowledgements of debt; corroboration by CCTV; distinction between civil and criminal exclusionary rules.
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30 November 2016 |
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The appellant’s bid to allow pay‑as‑you‑go future medical expenses and exclude them from contingency fees was refused.
Delict – damages – ‘once and for all’ rule – future medical expenses – whether common law should be developed under s 39(2) of the Constitution to permit pay‑as‑you‑go payments; Constitutional rights – s 27 (access to health care), s 28 (children’s rights) – burden of proof when invoking constitutional development; Contingency Fees Act 66 of 1997 – contingency fees calculated by reference to total amount recovered – courts lack power to exclude future medical expense awards from contingency fee calculations; law reform is primarily for the Legislature.
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30 November 2016 |
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Reported
Prescription runs from knowing the material facts (fee deductions), not from later knowledge of legal invalidity.
Prescription — s 12(3) Prescription Act — prescription begins when creditor has facts from which debt arises; knowledge of legal invalidity unnecessary; cause of action arose on payment/deduction of fees; contingency-fee agreements — non‑compliance with Contingency Fees Act renders agreement invalid but legal conclusion not required for prescription to run.
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29 November 2016 |
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Reported
A site licence under the Petroleum Products Act is merchantable property; sale agreement to respondent is valid.
Petroleum Products Act (s 2D and regulations) – site licences under transitional provisions; transferability and commercial value of site licences; whether a site licence is a merchantable merx; distinction between s 2A and s 2D applications; common mistake and validity of sale agreement.
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29 November 2016 |
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Section 276B(2) not retrospective; appellate court reduced excessive cumulative sentence to 30 years.
Criminal law – Sentencing – Non-retroactivity of s 276B(2) Criminal Procedure Act – Fixing of non-parole periods – Appellate interference where sentence is shocking, startling or disturbingly inappropriate – Totality principle in cumulative sentencing – Substitution of sentence by appellate court.
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29 November 2016 |
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The State's circumstantial evidence and an uncertain witness account were insufficient to prove the applicant's participation in murder and robbery.
Criminal law – Circumstantial evidence – inferential reasoning and R v Blom; Criminal law – Common purpose – evidential requirements for conviction; Criminal procedure – Right to silence – consequences where case rests on circumstantial evidence; Evidence – Identification and reliability of witness testimony; Evidence – Financial/transactional evidence (bank deposit slips) and sufficiency to infer participation in crime.
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28 November 2016 |
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Appellant granted leave to appeal against conviction due to incomplete record and reasonable prospects of success.
Criminal procedure – section 309C CPA – petition against refusal of leave to appeal – incomplete trial record; reconstruction failure; reasonable prospects of success test; burden of proof; evaluation of witness credibility; assistance to co-accused.
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28 November 2016 |
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Life sentence for brutal, injurious rape upheld; no substantial and compelling circumstances to warrant deviation.
Criminal law; Minimum Sentences Act – life imprisonment for rape where grievous bodily harm used to subdue complainant and rape occurred twice; substantial and compelling circumstances; effect of s 271A CPA (superannuation of prior convictions) on sentencing; proportionality of sentence.
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28 November 2016 |
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Reported
Close corporation without valid fidelity fund certificate precluded from claiming estate agent commission; certificate issued to non-existent company invalid.
Estate Agency Affairs Act 112 of 1976 – fidelity fund certificates – validity and requirements of s 16; certificates issued to non-existent juristic person invalid. Close Corporations Act s 27 – conversion of company into close corporation does not validate post-conversion certificates issued in the name of a company that ceased to exist. s 26 and s 34A – absence of valid certificates precludes entitlement to estate agent remuneration. Definition of "business undertaking" – share sale transferring permits, goodwill and profit rights constitutes sale of a business undertaking. Agency, authority, ratification and estoppel – no authorised representation or ratification established; no estoppel against purchaser.
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25 November 2016 |
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A business rescue order demands demonstrable, reasonable prospects of rescue; lacking those, final winding‑up is appropriate.
Companies Act – business rescue – s 131(4) – court may order supervision and business rescue only where there are reasonable prospects of rescuing the company. Companies Act – s 128(1)(b), s 150, s 152, s 153 – requirements for business rescue plans; creditor voting and potential court intervention. Winding‑up vs business rescue – single‑asset, no employment or public interest considerations may favour liquidation where rescue prospects are speculative. Appellate review – value judgments on reasonable prospects are reviewable where a different conclusion is warranted; importance of reasoned judgments.
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25 November 2016 |
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Negligent post-accident medical treatment can be a novus actus interveniens breaking the Fund’s s17(1) liability.
Delict – Negligence – Causation – distinguishing factual and legal causation; novus actus interveniens by negligent medical treatment. Road Accident Fund Act s17(1) – does not render the Fund automatically liable for all subsequent harms arising after initial injury. Leave to appeal – only where reasonable prospects of success or compelling reasons exist.
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25 November 2016 |
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Reported
Statutory power to lay pipelines under s 24(j) is valid; courts may not compel registration of a servitude; no compensation for subsequent purchaser.
Statutory authority to enter land and lay pipelines (s 24(j)) — Notice requirement procedural not voiding — Lawful placement binds successors-in-title — Court cannot order registration of servitude where no agreement or foundation exists — No compensation/constitutional remedy for subsequent purchaser unaware of pre-existing statutory works.
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25 November 2016 |
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‘Sell’ in s 27(4) requires completion by delivery; dealer not liable until licence obtained and sale delivered.
Broadcasting Act s 27(4) — meaning of 'sell' — statutory interpretation in context of purpose to prevent unlicensed use — 'sell' = sale completed by delivery (not mere agreement); payment-credit facility not a sale; dealer not liable for penalties where licence obtained and sale/delivery occurred later; special leave refused.
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25 November 2016 |
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A clear written MOU excluding other expenses cannot be varied by standard terms or subsequent conduct.
Contract interpretation – written MOU exclusive memorial – clause excluding other expenses construed strictly; parol evidence and subsequent conduct cannot vary clear written terms; tacit term not inferred where parties expressly dealt with allocation of costs.
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25 November 2016 |
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An order postponing a default-judgment application sine die and directing further affidavit is not appealable.
Civil procedure – Appealability – Order postponing default-judgment application sine die and directing affidavit – Interlocutory/procedural direction not final, not definitive of rights, not disposing substantial relief – Zweni test applied; Superior Courts Act’s reference to “decision” does not broaden appealability; appeal struck for lack of jurisdiction.
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24 November 2016 |
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Winding‑up applications must be refused where the debt is disputed on bona fide and reasonable grounds.
• Company law – Winding‑up – Winding‑up proceedings not appropriate for enforcement of disputed debts – Badenhorst/Kalil rule applies.
• Evidence – Where indebtedness is disputed on bona fide and reasonable grounds on the papers, respondent need not prove defence on the probabilities.
• Procedure – Referral to oral evidence unnecessary where the debt is shown to be disputed on bona fide and reasonable grounds; ordinary action is the proper forum for resolving the merits.
• Relief – Winding‑up application may be postponed sine die pending outcome of claimant’s pending action.
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24 November 2016 |
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Appeal succeeds: trial court misdirected on minimum-sentence law; murder sentence reduced to 18 years.
Criminal law – Sentencing – Minimum sentences (Criminal Law Amendment Act s 51) – Trial court’s misdirection on applicability – reassessment of sentence on appeal – absence of substantial and compelling circumstances – reduction of sentence as shockingly inappropriate.
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24 November 2016 |
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Reported
Whether the applicant had reasonable prospects of success warranting leave to appeal against a magistrate’s conviction and sentence.
Criminal procedure – Appeals from magistrates’ courts – Proper route and leave requirements under s 309(1)(a), s 309B and s 309C(2) CPA. Leave to appeal – Test of reasonable prospects of success – realistic, not merely arguable, chance of success (S v Smith). Evidence – Sufficiency to prove theft beyond reasonable doubt where accused’s version was corroborated by pound officials and later recovery by owner.
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24 November 2016 |
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Whether levies are apportioned per stands shown on the township general plan or only per registered title.
Property development — Interpretation of articles of association — 'Stands' construed as erven shown on the township general plan; 'units' as sectional title units — apportionment of levies among owners accordingly.
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24 November 2016 |
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Reported
LCC cannot order expropriation or expungement of a third‑party MPRDA mining right to effect commonage restitution.
Restitution of Land Rights Act – scope of LCC powers – s 35(1)(a) acquisition/expropriation limited to restoration of the specific land/right claimed. Restitution of Land Rights Act – s 35(4) – ‘adjustment’ cannot change the essential nature of the right claimed. MPRDA – mining rights as statutory, person‑specific exploitation licences; not equivalent in substance to leases or servitudes for restitution purposes. Interaction of restitution and post‑1994 regulatory statutes – restored rights are subject to contemporary statutory regimes including MPRDA.
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23 November 2016 |
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Emotional-shock damages for negligent stillbirth upheld; no recognised claim for a constitutional right to rear a child.
• Delict – medical negligence – failure to interpret and act on abnormal CTG leading to stillbirth – causation established.
• Damages – emotional shock – general damages awarded where pleaded facts evidence severe grief and psychological sequelae.
• Constitutional law – no recognised standalone claim for constitutional damages for a right to rear a child where child was stillborn and issue not pleaded.
• Procedure – Uniform Rule 33 stated cases must set out facts and legal issues clearly; courts should be cautious when facts are inadequately stated.
• Practice – condonation for late heads may be granted but tardy conduct by State Attorney criticised.
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18 November 2016 |
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Reported
The applicant failed to prove exceptional circumstances and irreparable harm needed to implement a judgment pending appeal.
Superior Courts Act s 18 – suspension of decision pending appeal – exceptional circumstances required for implementation – s 18(3) places onus on applicant to prove irreparable harm to applicant and absence of irreparable harm to respondent – prospects of success relevant – requirement to record adequate reasons under s 18(4)(i) – costs where applicant acts without circumspection (Biowatch not applicable).
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17 November 2016 |
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Reported
S44(1) governs late proof in company liquidations; s407 vests expungement power in the Master, reviewable by court.
Companies law/insolvency – s339 Companies Act 1973 – application of Insolvency Act mutatis mutandis.* Insolvency Act s44(1) – proof of claims – three‑month bar and proviso permitting late proof with Master’s or court’s leave apply in company liquidations.* Companies Act s366(2) – fixing time for proving claims for participation in a particular distribution; complementary to s44(1).* Companies Act s407 – objections to Liquidation & Distribution account; Master’s power to direct amendment/expungement; court’s role is to review Master's decision, not to expunge claims originally.
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16 November 2016 |
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Reported
Whether a repayment administrator may recover ‘all assets’ under s 84(1A)(b)(i) and how sequestration affects that power.
Banking law – Banks Act ss 83–84 – repayment of money unlawfully obtained – appointment and powers of repayment administrator – s 84(1A)(b)(i) permits recovery and possession of 'all the assets' of person under direction. Interpretation – 'all assets' includes assets irrespective of source of acquisition; not confined to assets derived from unlawful scheme. Procedure – ex parte urgent applications permissible where risk of dissipation; disclosure obligations and joinder of interested spouses co-owners. Insolvency interaction – sequestration and trustees' appointment supersede repayment administrator's statutory control over assets.
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10 November 2016 |
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A non-member spouse is entitled to a share of a member spouse’s pension interest as part of the joint estate despite no s 7(8) order.
Family law – Divorce – Divorce Act 70 of 1979 ss 7(7) and 7(8) – Pension interest deemed part of joint estate for determination of patrimonial benefits – s 7(8) provides mechanism to bind pension fund to pay/endorse but is not prerequisite to entitlement – effect of settlement agreement language on inclusion/exclusion of pension interests – jurisdiction to grant s 7(8) relief.
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4 November 2016 |
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Reported
Whether respondent must disclose private JSC deliberations under rule 53 — court upheld confidentiality, refusing disclosure.
Judicial review — Uniform Rule 53(1)(b) — scope of ‘record of proceedings’ — private deliberations and audio recordings not automatically part of record; relevance and proportionality determine disclosure; Judicial Service Commission Act and reg 3(k) recognise private deliberation; PAIA exemption for JSC judicial selection records; balancing openness/transparency against privacy, dignity and effective selection process.
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2 November 2016 |
| October 2016 |
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Reported
A registrar’s order to inspect under s 44(4)(a) is investigatory and not appealable under s 49(1).
Medical Schemes Act — s 44(4)(a) inspections — investigative power — s 49(1) appeal provision — meaning of "decision" — not appealable; investigatory acts subject to judicial review (legality/irrationality) but not appeal; costs — Biowatch principles inapplicable absent genuine constitutional issue.
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3 October 2016 |
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Reported
Payments for actual contractual services to public authorities are not 'deemed' supplies and do not qualify for VAT zero-rating under s 11(2)(n).
Value-Added Tax – section 8(5) deeming provision – scope limited to unrequited transfer payments (grants/subsidies/donations) – does not apply to contractual/actual supplies; s 11(2)(n) zero-rating contingent on s 8(5) deeming; distinction between 'payment' and 'consideration'; interpretive approach and persuasive weight of SARS Interpretation Note 39.
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3 October 2016 |
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Reported
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3 October 2016 |
