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Citation
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Judgment date
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| December 2017 |
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Prior fraudulent confirmations by the respondent’s director causally induced the applicant to factor and suffer loss on unpaid invoices.
Delict – causation – factual and legal causation – application of 'but‑for' test and foreseeability in continuous fraudulent schemes. Agency/factoring – verification by customer’s representative – fraudulent confirmations inducing factor to advance payments. Civil procedure – absolution from the instance – inappropriate where factual causation established by course of conduct.
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20 December 2017 |
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Reported
Rebates tied to qualifying capital investment (PAA certificates) are capital receipts, not taxable revenue.
Income tax – government grant (Productive Asset Allowance) – characterisation as capital or revenue – purpose of grant decisive – duty-rebate mechanism and conditionality do not convert capital grant into trading income.
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20 December 2017 |
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Registration of a composite mark does not prevent others' bona fide descriptive use of its ordinary words or phonetic equivalents.
Trade marks — disclaimer and admission under s15 Trade Marks Act — composite marks containing ordinary descriptive words; registration does not confer exclusive rights to component words; phonetic equivalents of descriptive words are non‑distinctive and disclosable; purpose of disclaimer is to prevent unjustified monopolies and protect bona fide descriptive trade use.
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13 December 2017 |
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Reported
Whether s40(1) imposes joint and several liability and how regulations protect separated custodial parents seeking fee exemptions.
South African Schools Act s 40(1) – parental liability for school fees – joint and several liability; Fee Exemption Regulations – combined annual gross income requirement; conditional exemptions where non‑custodial parent refuses to provide income particulars; protection of custodial parents; administrative fairness and procedural obligations of schools and governing bodies; interplay with right to education, equality and dignity.
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13 December 2017 |
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Reported
Delay and possession of fraudulent asylum permits can negate Refugees Act protection and permit deportation.
Refugees Act – s21 and Refugee Regulations reg 2 – requirement to apply for asylum in person and without delay; Immigration Act ss9,23,32,34,49 – unlawful entry, detention and deportation; Refugees Act s4(1)(b) – exclusion clause limited to crimes committed prior to entry; interplay between refugee protection and immigration enforcement.
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13 December 2017 |
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Reported
Appeal tribunal may assess injury seriousness but cannot finally determine causation; causation is for the courts.
Road Accident Fund Act and Regulations – assessment of serious injury under s 17(1A) and Regulation 3; scope of Road Accident Appeal Tribunal’s powers – limited to seriousness assessment (including directing further assessments and substituting assessments) and not to finally determining causation; principle of legality – implied powers must be necessary and reasonable consequence of express powers; causation remains for the courts; Fund retains prerogative to concede or contest causation.
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13 December 2017 |
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Whether the trustees validly authorised a consulting agreement and whether accrued consultancy fees could be awarded.
Trusts / Pension fund rules – validity of investment consulting agreement – authority of trustees to conclude agreements by consensus to meet two‑thirds threshold. Administrative law / ultra vires – fund rule permitting appointment and withdrawal of consultants does not render fixed‑term consultancy agreements void. Damages / accrued income – computation of lost fees for unexpired contractual period may involve speculation but court must make the best possible award where credible evidence exists.
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6 December 2017 |
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Reported
Indemnity did not discharge seller’s duty to deliver vacant occupation; purchaser may withhold payment until eviction, counterclaim dismissed.
Contract — Sale of land — Indemnity and Undertaking — obligation to provide vacant occupation — interpretation in context — Indemnity postponed but did not extinguish obligation; reciprocity (exceptio non adimpleti contractus) permits purchaser to withhold balance pending vacant occupation; separate expropriation proceeds payable subject to set-off; counterclaim dismissed for lack of proof.
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6 December 2017 |
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Admissions obtained after police assault and without proper rights warnings must be excluded; appellant acquitted.
Constitutional and criminal procedure – Section 35(5) Constitution – exclusion of evidence obtained in violation of rights; voluntariness of extra‑curial admissions. Burden of proof – prosecution must prove on balance of probabilities that admissions/confessions were voluntary. Evidence law – admissions obtained after assault, without proper warnings or notice of rights, are inadmissible and may render trial unfair. Sufficiency of evidence – convictions unsustainable without voluntary admissions or independent corroboration.
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5 December 2017 |
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Reported
Appellate courts may increase sentence after notice, but a life term was disproportionate and regional sentence reinstated.
Criminal law – Appeal against conviction only – appellate court may, under s 309(3) CPA and after notice, increase sentence; Sentencing – minimum prescribed life sentence for sexual offences against minors – courts must assess proportionality and substantial and compelling circumstances; Sentence review – undue focus on prescribed minimum may perpetrate injustice.
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5 December 2017 |
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Reported
A court cannot appoint liquidators under s 20(9); only the Master may do so, and the Master's appointment stands until reviewed.
Companies Act s 20(9) – court may declare group a single entity but may not appoint liquidators; only the Master may appoint liquidators (s 367 1973 Act); court orders must be clear and not vague; administrative appointment by the Master valid until reviewed.
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1 December 2017 |
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Reported
Whether a BRP's unpaid remuneration enjoys a 'super‑preference' on conversion to liquidation and must be proved under s 44.
Companies Act (Chap 6) – Business rescue practitioner remuneration – sections 135(4) and 143(5) – preference limited to free residue after liquidation costs; does not override secured creditors' rights; effective date of liquidation is date of winding‑up application; BRP must prove claim under Insolvency Act s 44; third‑party provider classification not determined where provider not party.
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1 December 2017 |
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Reported
Damages for loss of an RAF claim are valued at the notional trial date; inflation compensated by s 2A(5) interest.
Professional negligence – attorneys – negligent under‑settlement of RAF personal injury claim – valuation of loss assessed at date of notional trial against original debtor. Evidence – admissibility limited to what would have been known or reasonably foreseeable at the notional trial date; subsequent events may aid quantification. Time‑value of money – not to be dealt with by ad hoc discount to damages; court may order pre‑judgment interest under s 2A(5) to neutralise inflationary loss. In duplum rule – does not bar s 2A(5) orders that result in pre‑judgment interest exceeding capital where such interest is not arrear interest.
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1 December 2017 |
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Whether murder convictions based on common purpose and dolus eventualis were supported by evidence, prompting leave to appeal.
Superior Courts Act s 17(2)(f) – referral for reconsideration of refusal of leave to appeal. Criminal law – common purpose doctrine – prerequisites for liability, presence, knowledge, manifestation of association and mens rea (dolus eventualis). Evidence – sufficiency and causation in murder prosecutions arising from collective police conduct.
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1 December 2017 |
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An independent expert’s valuation, adjusted to give effect to contractual intent, did not exhibit a manifest error; appeal dismissed.
Contract – valuation by independent expert – scope of mandate – expert entitled to interpret documents, obtain representations and adjust outdated annexure to effect parties’ intent. Contract – binding effect of expert’s findings – findings final and binding absent manifest error. Evidence – manifest error defined as plain and indisputable error; appellate review limited to identifying such error. Commercial law – share purchase valuation – application and interpretation of formula for second tranche valuation.
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1 December 2017 |
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An applicant must exhaust available internal remedies; a late, defective appeal without condonation does not justify exemption.
Administrative law – PAJA s 7(2) – duty to exhaust internal remedies before judicial review; s 7(2)(c) exemption requires application and proof of exceptional circumstances and interest of justice; NEMA s 43(2) internal appeal is an effective remedy; late or procedurally defective internal appeals without condonation do not discharge exhaustion duty.
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1 December 2017 |
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Reported
Clear contractual cancellation clauses for non-payment are enforceable; courts may not override them using ubuntu or good faith.
Contract law – enforcement of contractual cancellation clauses for non-payment; pacta sunt servanda; public-policy test (Barkhuizen) – objective and subjective stages; role of ubuntu and good faith in contract development; lessee liable for agent (bank) failures; commercial certainty and freedom to contract.
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1 December 2017 |
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Reported
Unpleaded common‑purpose basis invalidates conviction; robbery upheld but sentence reduced for lack of reasons and time served.
Criminal law – robbery with aggravating circumstances (firearm) – minimum sentence s 51(2) CLAA – requirement to give reasons for departing from prescribed minima. Criminal procedure – doctrine of common purpose – conviction cannot be founded on common purpose where not pleaded or proved; prohibition of trial by ambush – s 35(3)(a) Constitution. Sentencing – credit for time served/pretrial custody may amount to substantial and compelling circumstances justifying deviation from minimum sentence.
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1 December 2017 |
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Whether convictions based on common purpose were justified and whether sentence should reflect substantial pre-trial detention.
Criminal law – Doctrine of common purpose – prerequisites (presence, awareness, intention to make common cause, manifestation of association, mens rea) – misapplication where offences temporally and factually distinct. Criminal procedure – competent verdicts (theft/receiving) available under s 260 CPA – alternative to misapplied common purpose. Sentencing – misdirection by failure to consider substantial pre-trial detention; undue emphasis on victims’ rights; appellate intervention and substitution of sentence. Concurrency and aggregation of sentences; appellate recalibration to 27 years effective imprisonment.
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1 December 2017 |
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Company claims prescribed where finance manager’s constructive knowledge was attributable to the creditor under s 12(3).
Prescription Act s 12(3) – constructive knowledge – creditor deemed to know identity of debtor and facts if could have acquired them by exercising reasonable care; corporate creditor – knowledge of senior finance officer attributable to company; statutory objective reasonable‑care test distinct from common‑law rules of attribution; claims held prescribed.
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1 December 2017 |
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Reported
Homeowner not liable where a toddler in parental custody falls into a pool; wrongfulness and legal duty were not established.
Delict — omission vs positive act; wrongfulness is distinct from negligence and requires judicial determination based on public and legal policy; foreseeability is relevant to negligence not wrongfulness; parental supervision on private premises limits homeowner liability for child injuries; pleading requirements — wrongfulness/legal duty must be specifically pleaded.
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1 December 2017 |
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Reported
Provocation by the respondent negated the owner’s strict liability for damage caused by the ostrich; claim dismissed with costs.
Delict – Liability for animals – actio de feris/actio de pauperie – strict liability of owner for wild/dangerous animals. Defence – Provocation (concitatio) by the injured person is a defence that negates strict liability. Causation – injury sustained while fleeing must be caused by the animal’s conduct; absence of attack after fall undermines causation. Evidence – prior teasing and immediate conduct (throwing object) relevant to provocation and onus of proof.
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1 December 2017 |
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Reported
Non-compliance with building-plan and occupancy-certificate provisions does not automatically render a lease void.
Building regulations – National Building Regulations and Building Standards Act 103 of 1977 – non-compliance with ss 4(1) and 14(1) – whether such non-compliance renders private lease void ab initio; Penal sanction does not necessarily imply contractual invalidity – ascertain legislative purpose; Occupancy certificates – s 14(1A) and municipal remedies relevant; Implied prohibitions in penal statutes should be approached with caution.
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1 December 2017 |
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Over-emphasis on victims’ rights and failure to credit long pre-trial detention warranted reduction of the applicants' sentences.
Criminal law – sentencing – S v Zinn triad – court must balance nature of offence, offender’s circumstances and interests of society; over-emphasis on victims’ rights is misdirection. Criminal law – Minimum Sentence Act – indictment and charge fruitfully apprises accused of applicability; separate forewarning not always required. Sentencing – credit for substantial pre-trial detention – omission to do so is a misdirection warranting interference. Appeal – appellate courts may reduce excessive cumulative sentences where trial court misdirects.
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1 December 2017 |
| November 2017 |
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Whether rezoning lapsed under LUPO’s two‑year rule or remained valid due to prior inclusion and utilisation.
Land Use Planning Ordinance (LUPO) – simultaneous subdivision and rezoning – deferred rezoning treated as part of original application; s 16(2)(a)(i) two‑year lapse for standard rezonings – inapplicable where rezoning is part of substitution scheme or where land was utilised (improvements) within period; "utilisation" includes improvements to land; interdict unavailable where rezoning valid and not lapsed.
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30 November 2017 |
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Reported
Condonation granted but contempt claim dismissed; landowner may enforce CARA; court cannot compel Minister’s permissive Reform Act powers.
Civil procedure – condonation and reinstatement of lapsed appeal; Contempt – high standard and wilfulness required; Environmental law/CARA – private owner’s standing to remove livestock for overgrazing; Land reform/LTA – removal of livestock under CARA not an eviction; Reform Act – Minister’s powers permissive, court may not compel exercise of discretionary powers; Costs – Biowatch principle between State and private party; punitive personal costs against attorneys for abusive/dilatory conduct; interlocutory papers must be indexed and paginated.
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29 November 2017 |
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Reported
An unused old order right’s exclusivity endures until its conversion application is granted or refused; later conflicting applications are precluded.
Mineral law – transitional unused old order rights (Schedule II Item 8) – exclusivity endures until application granted or refused; Administrative law – s 16 acceptance/return of applications – RM cannot accept later conflicting application while earlier application pending; Company law – deregistration and administrative restoration – rights revived retrospectively; Remedies – court substitution of administrative decision inappropriate where conditions and decision‑maker expertise required.
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29 November 2017 |
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Reported
Landlord entitled to terminate under lease renewal clause; no enforceable duty to negotiate in good faith absent deadlock‑breaking mechanism.
Contract – lease renewal clauses – interpretation of notice and negotiation requirements; Obligation to negotiate in good faith – enforceability depends on existence of deadlock‑breaking mechanism; Development of common law – limits where contractual certainty and public policy weigh against imposing negotiation duties; Eviction – termination under contractual month‑to‑month provision competent; Ubuntu – cannot be used to import terms not agreed by parties.
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29 November 2017 |
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Dependants cannot claim loss of support from the Fund where the deceased alone caused the fatal accident.
• Road Accident Fund Act – ss 17, 19 and 21 – dependants’ action for loss of support – requirement of death unlawfully caused by another person. • Delict – wrongfulness as essential element of dependants’ claim – no claim where deceased was sole wrongdoer. • Apportionment of Damages Act – does not create a cause of action against a deceased wrongdoer; intended for contribution among multiple wrongdoers. • Development of common law – inappropriate to create novel dependants’ remedy in place of legislative reform.
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29 November 2017 |
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Appeals from Electoral Court decisions in municipal election disputes are permissible; Electoral Court erred on materiality and factual-dispute principles.
Electoral law – municipal elections – appeals from Electoral Court – section 96 of Electoral Act not applicable to Municipal Electoral Act disputes; appeals competent. Electoral law – materiality requirement (s 65 Municipal Electoral Act) – irregularities must be material to affect result to justify recount or setting aside. Administrative/Procedural law – candidate registration – local and district nominations are distinct; no automatic district registration from local nomination. Civil procedure – motion proceedings – application of Plascon-Evans where disputed facts arise on affidavits; respondent’s credible version must prevail.
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27 November 2017 |
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The applicant’s unexplained prolonged delay and lack of prospects of success justified refusal of condonation and reinstatement.
Criminal procedure – appeal – condonation for late lodging of notice of appeal, record and heads – reinstatement of lapsed appeal – adequacy of explanation for delay – prospects of success – single witness evidence and cautionary approach – seizure of firearms with consent and ballistic linkage.
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27 November 2017 |
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Reported
A pending application for leave to appeal is governed by the old Supreme Court Act, not the Superior Courts Act.
Criminal procedure — application for leave to appeal pending at commencement of Superior Courts Act — whether governed by Supreme Court Act 59 of 1959 or Superior Courts Act 10 of 2013; pending proceedings (s 52) — effect of repeal and non-retrospectivity where new law raises substantive threshold; appealability and procedure under s 20 of Supreme Court Act; Gonya/Koasasa principles reaffirmed.
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24 November 2017 |
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Reported
Court increased sentence for murder (dolus eventualis), finding no substantial and compelling circumstances to deviate from statutory minimum.
Criminal law – murder (dolus eventualis) – sentencing – prescribed minimum sentence under s 51(2)(a) CLAA – substantial and compelling circumstances required for departure. Sentencing principles – balancing triad (offender, crime, interests of society) – weight of personal circumstances and rehabilitation in serious crime. Appellate review of sentence – interference permitted where misdirection or sentence shockingly inappropriate. Evidence – contradictions in accused’s account and significance of genuine remorse. Credit for time served and correctional supervision (s 282 CPA).
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24 November 2017 |
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Trial court misapplied the test for non‑testifying accused; that legal error warranted setting aside the murder acquittal.
Criminal procedure – s 319 Criminal Procedure Act – reservation of question of law – trial court’s misapplication of test for evaluating evidence where accused did not testify – ‘reasonably possibly true’ test inapplicable; error of law; acquittal set aside.
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24 November 2017 |
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Rescission of an ex parte order granted in absence of an affected creditor upheld; rescission not appealable.
Rule 42(1)(a) – rescission of orders erroneously granted in absence of affected party; locus standi – direct and substantial interest; ex parte orders – notice to affected creditors; Companies Act s387(4) – third party litigating in name of company in liquidation; appealability – Zweni test (finality, definitiveness, disposes substantial relief) and interests of justice; rescission orders ordinarily not appealable.
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24 November 2017 |
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Reported
Failure to afford s 102 Defence Act procedural rights rendered the Chief’s refusal to reinstate procedurally unfair, but reinstatement was not ordered.
Defence Act s 59(3) – deemed dismissal after absence exceeding 30 days – Chief may reinstate on good cause shown. Administrative law – PAJA – combined board of enquiry and administrative decision constitute administrative action when rights are adversely affected. Procedural fairness – s 102 of Defence Act grants rights to oral evidence, representation, cross-examination and to comment on findings; failure to afford these rights is reviewable under PAJA s 6(2)(c). Remedies – setting aside administrative action does not automatically result in reinstatement; courts should not substitute administrative decisions except in exceptional circumstances.
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24 November 2017 |
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Reported
The respondent aunt who de facto adopted and raised her nephew can claim loss‑of‑support as a dependant.
Delict – Dependants’ action – De facto adoption and mother‑child relationship – Duty of support beyond second degree consanguinity – Application of boni mores, ubuntu and customary law – Indigence as requirement for enforcement – Quantification deferred.
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24 November 2017 |
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Reported
Condonation refused for extreme delay; autrefois acquit and stay lacked prospects; magistrate’s unjudicial conduct referred.
Condonation – extreme, unexplained delay and inadequate explanation; Autrefois acquit – prior conviction set aside for procedural irregularity cannot support plea; Stay of prosecution – exceptional remedy requiring significant prejudice and not warranted here; Judicial conduct – discourtesy and prejudicial intervention; referral to Magistrate’s Commission.
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24 November 2017 |
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Whether gross commission or only net commission (after grossed‑up dividends) accrued to the respondent for tax purposes.
Tax law – accrual of income – whether gross commission under contractual sliding scale accrues or is subordinated to deduction of grossed‑up dividends under contract. Contract interpretation – clauses read in context and for commercial purpose; ‘subject to’ clauses subordinate earlier calculations. Characterisation – dividends versus commission; effect on tax accrual. Evidence – parties’ implementation and accounting treatment relevant to entitlement.
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22 November 2017 |
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Statutory scheme forbids oral agreements via designated institutions; exception upheld and condonation refused.
Statutory body – ultra vires – National Student Financial Aid Scheme Act 56 of 1999 – designated higher education institutions’ powers limited to a closed list (s20) – payments as allocations to institutions only (s19(5)) – oral agreements with third‑party service providers not authorised – exception to particulars of claim upheld; condonation refused.
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22 November 2017 |
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Prescribed minimum (15 years) applies to robbery involving a motor vehicle; imposed with partial concurrency producing 23-year effective sentence.
Criminal law – Minimum sentences – s 51(2) Criminal Law Amendment Act – robbery involving taking of a motor vehicle attracts 15-year prescribed minimum; sentencing – substantial and compelling circumstances required for departure; concurrency versus cumulative sentences where offences have separate intentions; appellate correction of misdirected sentencing and antedating of sentence.
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21 November 2017 |
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High court erred dismissing petitions; appellants granted leave to appeal sentencing under prescribed-minimum framework.
Criminal procedure – s 309B/309C petitions – leave to appeal against sentence – prescribed minimum sentences (s 51(2) Criminal Law Amendment Act) – substantial and compelling circumstances – Superior Courts Act s 16(1)(b) jurisdiction for special leave to appeal against decisions of a Division on appeal to it.
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21 November 2017 |
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Conviction based solely on an unproven pointing‑out cannot stand; the applicant's convictions were set aside.
Evidence — Pointing‑out/confession — Requirement that contents be proved on record — Missing or lost testimony renders pointing‑out unproven and inadmissible. Criminal procedure — Trial‑within‑a‑trial — Admission of confession dependent on proof of content and voluntariness. Police conduct — Arrest, detention and interrogation procedures — Potential infringement of fair‑trial rights and constitutional protections.
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15 November 2017 |
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Whether the trial court properly refused discharge and whether reopening the State’s case vitiated the trial.
Criminal procedure — discharge in terms of s 174 — discretion and test for discharge; Criminal procedure — reopening State case — requirements and irregularity; Evidence — circumstantial proof and exclusion of irregularly admitted evidence; Criminal law — suicide versus homicide in situational and forensic context; Sentence — misdirection on premeditation and remittal under s 276A and consideration of s 276(1)(h).
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8 November 2017 |
| October 2017 |
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Reported
Beneficial owners holding shares through nominees lack standing under s252; only registered members may seek relief.
Company law – Oppressive or unfairly prejudicial conduct (s 252 Companies Act 61 of 1973) – "Member" for s 252 purposes means registered holder as defined in s 103 and register provisions – Beneficial owner holding through nominee lacks locus standi – Joinder/intervention cannot expand statutory class of claimants.
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26 October 2017 |
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Rescission granted where attorney’s hospitalisation excused default and a bona fide counterclaim disclosed triable issues.
Civil procedure – Rescission of default judgment (Uniform Rule 31(2)(b)) – requirements: reasonable explanation for default; bona fide application; bona fide defence with prima facie prospects. Attorney illness and service at attorney’s firm as reasonable explanation. Counterclaim – unliquidated contractual damages and penalties can constitute a defence in rescission/summary proceedings and may be adjudicated together where issues are interconnected. Discretion – appellate interference where court a quo failed to exercise discretion judicially.
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13 October 2017 |
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Reported
Decision to discontinue prosecution was irrational, premised on inapposite constitutional provision and unsupported evidence.
Constitutional and administrative law — prosecutorial discretion — review and rationality — NDPP’s reliance on s 179(5)(d) inapposite where NDPP reviews own earlier decision — abuse of process allegations ordinarily for court determination — inadmissible/unenquired intercepted recordings — NPA’s litigation conduct liable to censure.
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13 October 2017 |
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Reported
A registered repurchase clause constituting a personal option to retransfer is subject to three‑year prescription.
Immovable property – title deed condition – building obligation creates real right (encumbrance on dominium). Repurchase/option clause – personal right (jus in personam) – registration does not convert it into a real right. Prescription – personal claim to re‑transfer constitutes a debt under Prescription Act s 11(d) and prescribes after three years. Registration practice – caution against treating Madzhie as authoritative for refusal to register such clauses.
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2 October 2017 |
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An appeal confined to costs requires exceptional circumstances; no such circumstances found, appeal dismissed with costs.
Costs — appeal confined to costs — s 16(2)(a) Superior Courts Act — "exceptional circumstances" required to hear costs-only appeals; Land Claims Court practice — ordinarily no adverse costs in social-interest land litigation; judicial exercise of discretion in costs awards — considerations for ordering costs and fees for two counsel; ESTA occupiers’ vulnerability and chilling effect of adverse costs orders.
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2 October 2017 |
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Reported
Civil forfeiture under POCA unavailable where dispute is commercial and property alleged as stolen, not instrumentalities or proceeds.
Forfeiture under POCA — preservation and forfeiture orders (ss 38, 48, 50) — instrumentality of an offence vs objects of alleged theft — proceeds of unlawful activities — misuse of POCA to resolve commercial disputes — suitability of motion proceedings where genuine disputes of fact exist.
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2 October 2017 |
