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Citation
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Judgment date
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| December 2012 |
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Reported
Where a cause of action is founded on a written agreement, a copy (or relevant part) must be annexed to a simple summons.
Civil procedure – Simple summons – Whether a simple summons is a pleading – Rule 17(2)(b) and Form 9 – Attachment of written contract where cause of action is founded on it – National Credit Act matters and judicial oversight – Practice in Western Cape High Court – Annexure of relevant part of voluminous documents – Originals not routinely required.
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24 December 2012 |
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Conviction under s117 set aside where accused remanded to a place of safety; no statutory offence existed.
* Criminal law – Correctional Services Act s117 – scope limited to ‘prisoner’ as defined in s1; does not criminalise escape from a child/youth place of safety. * Child Justice Act s29 – remand to place of safety distinguished from detention in prison. * Principle of legality – nullum crimen sine lege; courts cannot create offences. * Constitutional right – s35(3)(l) protection against conviction for conduct not an offence.
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21 December 2012 |
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A court must investigate delays under s342A before striking a matter off the roll; failure to inquire renders the order reviewable.
Criminal procedure — Unreasonable delays — s 342A Criminal Procedure Act — duty to investigate delays and consider factors in s 342A(2) — inquiry need not be formal but record must reflect compliance — remedy under s 342A(3)(c) reserved for accused who has not pleaded — s 342A may be invoked by court before which matter is pending even if partly heard by another magistrate.
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14 December 2012 |
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A spoliation remedy cannot circumvent PIE; courts must apply PIE protections where occupied dwellings constitute homes.
* Property law / eviction – Application of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) – PIE governs eviction proceedings by owners or persons in charge to the exclusion of common-law spoliation remedies where it applies. * Definition of "home" – contextual and generous interpretation; requires regular occupation and some permanence but less formality where housing is dire. * Mandament van spolie – cannot be used to circumvent statutory eviction procedures under PIE. * Procedure – challenges to applicability of PIE should be pleaded and raised early.
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13 December 2012 |
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Reported
s 30H(2) bars Adjudicator jurisdiction where related High Court proceedings exist; PAJA review refused for inordinate delay.
Pension funds – Adjudicator jurisdiction – s 30H(2) Pension Funds Act – lis alibi pendens effect where civil proceedings relate to subject matter of complaint; PAJA – delay and condonation (s 7 and s 9(2)) – inordinate delay, inadequate explanation, prejudice and public interest in finality; review of trustees’ resolution and Registrar approval – procedural fairness and misrepresentation arguments insufficient absent timely review.
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13 December 2012 |
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An eviction of the applicant without PIE court oversight, effected by the respondent’s agent, was unlawful and possession was restored.
PIE s4(6) — applicability where occupation became unlawful within six months; unlawful eviction — deprivation of housing without court oversight; consent/holding over — payments to landlord/attorney constituted lawful occupation; pactum de non petendo — waiver of immediate eviction but requirement to follow PIE procedures; landlord’s agent executing eviction — arbitrariness and incompatibility with s26(3) constitutional protection.
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13 December 2012 |
| October 2012 |
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Reported
Long occupation and improvements do not establish tacit consent; eviction upheld with six months' relief for the applicant.
PIE s.4 – unlawful occupier – tacit consent – inference from conduct; effect of written acknowledgement of debt and termination of lease; balancing interests under PIE and constitutionality – just and equitable eviction; compassionate suspension of enforcement (six-month vacating period).
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12 October 2012 |
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The applicant obtained an interim interdict halting sale pending review of an unconstitutional default judgment and possibly void mortgage.
* Constitutional and civil procedure – default judgment declaring home executable – Jaftha and Gundwana principles – where default judgment was granted without a judicial officer taking all relevant considerations into account it is unconstitutional and sales in execution cannot validly pass title.
* Matrimonial Property Act 88 of 1984 s15 – mortgage bonds concluded by one spouse in a marriage in community of property without the other spouse’s written consent may be void; s15(9) inapplicable where lender knew of marital regime.
* Abuse of process – sales in execution at manifestly inadequate prices (R10) may amount to simulated transactions and destroy debtors’ rights to surplus.
* Interim interdict requirements – prima facie right, irreparable harm, balance of convenience and absence of alternative remedy – applied with attention to proportionality and socio-economic vulnerability of occupiers.
* Delay/condonation – impoverished litigants given conservative legal advice and undisturbed possession may have reasonable explanations for delay in seeking rescission/review.
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4 October 2012 |
| September 2012 |
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Reported
Failure to amplify or revive abandoned appeal grounds; conviction for causing employee to witness masturbation affirmed for lack of consent.
Criminal law – Sexual offences – s 8(3) (causing person to witness sexual act) – definition of consent (s 1) – voluntary/uncoerced agreement – abuse of power/authority negating consent; Criminal procedure – failure to amplify grounds of appeal and abandonment of ground – late revival refused without substantive application; proof of "cause" and absence of consent where complainant economically dependent and under offender's authority.
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7 September 2012 |
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A deemed conviction from an admission-of-guilt fine may be set aside where police failed to explain that payment causes a criminal record and waives trial rights.
Admission of guilt fines – Criminal Procedure Act ss 56–57 – Requirement that peace officer explain import of written notice including that payment yields a deemed conviction and criminal record – Certificate of explanation required on notice; Magistrate’s review under s57(7) must ensure warning, opportunity to elect, and voluntariness before confirming conviction – Deemed convictions set aside where procedural unfairness and lack of warning exist.
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7 September 2012 |
| August 2012 |
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Reported
Business rescue to save a company’s business is permissible but requires concrete, objectively reasonable prospects of improved creditor returns.
Companies Act s131 — business rescue may aim to rescue a company’s business for greater creditor return; "reasonable prospect" = reasonable possibility not probability; applicant seeking sale to its nominee must provide concrete funding, cost and feasibility evidence; speculative plans and unmet suspensive conditions fatal; weighty regard to major creditors' opposition.
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28 August 2012 |
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Eviction set aside for failure to consider children's, disabled applicant's rights, alternative accommodation and relevant dowry claim.
• PIE s4(6) and s4(7) – statutory enquiry: must consider rights and needs of children, disabled persons and households headed by women; availability of alternative accommodation.• Courts’ proactive duty in eviction matters – mediation, municipal reports and active judicial management required where necessary.• Children's constitutional rights (s28) paramount – eviction by a parent requires inquiry into parental duties and alternative housing.• Relevance of dowry/mahr and unresolved patrimonial claims as circumstances in PIE enquiry.• Failure to assist unrepresented litigant and failure to investigate relevant facts are reviewable irregularities leading to setting aside an eviction order.
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20 August 2012 |
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Reported
Review court confirmed minor theft conviction but set aside a disproportionate three‑year sentence, ordering caution and immediate release.
Criminal procedure — Review under s 304 — Sentence interference where discretion not judicially exercised; Sentencing — consideration of previous convictions (s 271, s 271A, Muggel/Zondi) — undue emphasis and misdirection; Sentencing principle — mercy/Ubuntu and personal circumstances; Theft of low‑value goods — custodial sentence disproportionate; Review remedy — confirm conviction, set aside and substitute sentence (caution and discharge).
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13 August 2012 |
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Occupiers’ collateral challenge failed: no proven personal right, doctrine of notice inapplicable, and PAJA review unavailable.
Eviction — vindicatory claim requires proof of title and possession; defence rests on occupiers. Doctrine of notice — purchaser bound only if aware of a specific enforceable ius ad rem. Contract — conditional July 2000 proposal did not create enforceable rights; alleged tacit multi‑party agreement not proved (no consensus ad idem). Administrative law — PAJA review requires an empowering provision; private vendor’s sale not reviewable absent such provision. Motion proceedings — affidavits must aver facts establishing legal rights; probabilities insufficient for tacit contract.
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8 August 2012 |
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Where substantial performance was received, the plaintiff cannot reclaim total payments; labour under‑billing proved but time‑overcharging not proven.
Contract law – breach of services (locatio conductio operarum) – unjust enrichment and restitution versus contractual adjustment; measure of damages where substantial performance received; proof and quantification of overreaching in time and labour; liability for subcontractors' remedial costs; counterclaim dismissed for want of evidence; interest from date of judgment; costs allocation.
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1 August 2012 |
| July 2012 |
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Reported
Court ordered a Cape Town refugee reception office remain open after finding inadequate consultation and irrational closure.
* Refugees Act s8(1) – requirement to consult Standing Committee for Refugee Affairs before establishing/closing reception centres; consultation must be genuine.
* Administrative law – PAJA – whether decision to close reception office constitutes administrative action that 'adversely affects rights'; determination/rule of fairness approach.
* Rationality review – decision unreasonable/irrational where closure made without adequate alternatives or consideration of vulnerable asylum seekers.
* Interim relief – balance of convenience and prima facie prospects of success justify keeping reception office open pending review.
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25 July 2012 |
| June 2012 |
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Appeal against conviction dismissed; trial court erred in departing from mandatory life sentences for rape of a 15‑year‑old.
Criminal law – rape of a person under 16 – minimum sentence (s.51 Criminal Law Amendment Act) – substantial and compelling circumstances – pretrial detention and proximity of victim's age not sufficient – appellate interference to impose prescribed life sentence.
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15 June 2012 |
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A wine trade mark does not bar local grape‑farming use of the same geographical name absent a likelihood of confusion.
Trade marks — s 34(1)(b) infringement — similarity of goods — wine (class 33) v grapes/farming — likelihood of confusion; trade marks — geographic place names and scope of exclusivity; counterclaim to expunge mark under s 10(2)/10(7) — unnecessary where no infringement established.
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13 June 2012 |
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Reported
Business rescue requires credible, objective evidence of a reasonable prospect of rescue; absent that, winding-up is appropriate.
* Companies Act (2008) – Chapter 6 business rescue – interpretation of "financially distressed" and "reasonable prospect for rescuing the company" – evidentiary standard for business rescue applications.
* Business rescue v winding-up – assessment of realistic financing prospects, value realizable by practitioner versus liquidator, and impact of moratorium on creditors.
* Procedural – applicant must place sufficient objective facts and documentary evidence before court; full business rescue plan not required at launch stage but credible prospects must be shown.
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12 June 2012 |
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Reported
Where royalties are payable "in consideration for" continuing franchisor services, obligations are reciprocal and withholding defence may succeed.
Franchise law – Interpretation of "in consideration for" and "without deduction or set-off" clauses – Parties' obligations found reciprocal – exceptio non adimpleti contractus available where franchisor's continuing performance disputed – termination not established on papers.
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8 June 2012 |
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Reported
Search warrants were valid; claimed attorney–client privilege was waived or not genuine, so the application was dismissed with costs.
Search warrants – validity and execution; legal professional privilege – waiver, implied and imputed waiver by disclosure; seizure of attorney's files; ex parte duty of full disclosure; consideration of less invasive means before issuing a warrant; incorrect statutory reference (s205 v s21) does not necessarily vitiate warrant.
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6 June 2012 |
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Reported
A section 7(3) redistribution claim is ancillary to divorce and is extinguished by a spouse's death; it does not survive against the executor.
Family law – Divorce Act s7(3) – Redistribution ancillary to decree of divorce – Personal statutory right does not survive death of spouse – Litis contestatio and Rule 15 insufficient where marriage dissolved by death – No claim against executor.
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6 June 2012 |
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Refusal to postpone for counsel did not render trial unfair where accused abused/waived right and no substantial injustice occurred.
Criminal procedure — Right to legal representation (s35(3) Constitution) — Waiver/abuse of right — Postponement refusal — Substantial injustice test — Single-witness evidence and credibility — Sentence appellate intervention standard.
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4 June 2012 |
| May 2012 |
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Tacit renewal of lease on original terms allowed cancellation for arrears without prior cure notice and ordered eviction with attorney‑and‑client costs.
Urgency; motion vs action procedure; tacit relocation of lease and presumption that original lease terms apply; duration of tacit lease (month‑to‑month/indefinite); right to cancel under lease without prior cure notice; acceptance of rent does not necessarily waive cancellation; eviction and contractual award of attorney‑and‑client costs.
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31 May 2012 |
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Conviction unsustainable where child testified unsworn without proper s164 enquiry; convictions set aside.
Criminal procedure – sections 162–164 Criminal Procedure Act – child witness – capacity to understand nature and import of oath/affirmation – required three‑part enquiry before admitting unsworn/unaffirmed evidence – inadequacy of mere verbal query as to meaning – inadmissibility of evidence and unfair trial consequences.
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29 May 2012 |
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Bail refusal upheld for Serbian national amidst asylum claim, highlighting extradition and flight risk challenges.
Extradition law - Bail application - Refugee status application - Consideration of flight risk in extradition arrest.
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23 May 2012 |
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Sterilisation without verified written informed consent amounted to assault, breach of duty and negligent liability with damages awarded.
Medical law; informed consent; Sterilisation Act and HPCSA guidelines; surgeon's duty to verify written consent; unlawful sterilisation as assault; breach of contract and delict; quantum for medical and non‑patrimonial loss.
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16 May 2012 |
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Reported
Whether a deregistered company's administrative 'reinstatement' sufficed to validate its existence for enforcement of arbitral awards; court refused declaratory relief.
Companies law – Deregistration and reinstatement – s 73 (1973 Act) v s 82(4) (Companies Act 2008) – administrative reinstatement by Commission – procedural conditions in reg 40(7); Retrospectivity of reinstatement – absence of express deeming in s 82(4); Arbitration – enforcement of arbitral awards where a respondent company was deregistered prior to award – whether awards are nullities; Administrative law – requirement for proper procedure and notice by Commission – role of Treasury/public bodies when immovable property involved; Declaratory relief – appropriateness of court directions versus exclusive administrative competence of Commission; Joinder of Ministers and interest of Treasury in bona vacantia property.
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2 May 2012 |
| April 2012 |
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Reported
An interested person may be granted both care and contact and co-guardianship where it is in the child’s best interests.
Children's Act – s 18 parental responsibilities and rights – care and contact as complementary components; s 23 interested person may be granted care and contact where in child's best interests; s 24(3) construed as relating to exclusive guardianship only; High Court's inherent jurisdiction to grant co-guardianship; best-interests-of-the-child paramount; same-sex non-biological partner entitled to parental responsibilities where conduct evidences parental role.
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26 April 2012 |
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Restoration under s 26(7) validates agreements made during deregistration; cancellation and restitution failed for lack of contractual notice.
Close corporations — deregistration and restoration — s 26(7) Close Corporations Act — restoration deems corporation to have continued in existence and validates acts and agreements entered during deregistration; contract law — condictio indebiti — restitution claim fails if agreement validated by restoration; contractual cancellation — requirement of written notice and opportunity to remedy (clause 12); interim security — payment into trust requires evidence of real risk of dissipation or unenforceability.
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24 April 2012 |
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Reported
A non‑passenger’s claim for emotional shock from a fatal accident is not capped at R25,000 under section 18.
Road Accident Fund Act s17(1) – liability for bodily injury/death; s18(1) – statutory cap applies to persons conveyed in insured vehicle (passengers). Emotional shock/psychiatric injury recognised as "bodily injury" and recoverable where reasonably foreseeable and serious. Sections 17 and 18 are independent; non‑passenger claims are not subject to the R25,000 cap.
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17 April 2012 |
| March 2012 |
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Reported
Municipal tender cancelled lawfully where bidder substitution and s14 MFMA non‑compliance rendered the award void ab initio.
Municipal property disposal; tender award as administrative action; substitution of bidding entity and misrepresentation; Section 14(2) MFMA compliance required for alienation of capital assets; award void ab initio for non-compliance and fronting; Municipality entitled to cancel unlawful award; procedural fairness under PAJA s3 with justified departure under s3(4).
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30 March 2012 |
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Court dismissed challenge to provincial land‑use approvals, finding substantial compliance and that environmental and planning approvals must be reconciled, not automatically set aside.
* Administrative law – review under PAJA – requirement to act without unreasonable delay and remedial discretion under s 8(1) PAJA; substantial compliance and absence of prejudice may justify refusing to set aside administrative action.
* Land‑use planning – LEFTEA – layout plans and development parameters for less formal townships; relationship between LEFTEA and LUPO.
* Environmental law – NEMA authorisation (ROD) conditions (heritage trees, Kronendal Furrow) and interaction with land‑use approvals; arboriculturalist report to inform site development plan.
* Separation of powers – dual authorisations by different authorities: inconsistency does not automatically invalidate approvals; remedy is amendment or interdict against unlawful implementation.
* Procedural fairness – advertising/notice of departures under LUPO and PAJA; technical defects vs substantive prejudice; public interest in housing.
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22 March 2012 |
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Whether a dominant owner may restrict a servient owner’s registered right of way by withholding remote access to an automatic gate.
* Property law – Praedial servitude – Right of way – Servitude grants only entitlements necessary for right of way; dominant owner must exercise servitude civiliter modo and may not increase burden on servient land.
* Servitude interpretation – Wording construed narrowly; surrounding circumstances relevant only if wording ambiguous.
* Relief – Declaratory and mandatory interdict to enforce servient owner’s right of access; costs on attorney-and-client scale for unreasonable conduct.
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20 March 2012 |
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A defendant's notice of intention to except served during a Rule 26 notice of bar is an irregular step and not a proper response.
Civil procedure – Rule 26 notice of bar – whether a notice of intention to except is a proper response; Pleadings – exception is a pleading; Notice of intention to except is not a pleading and does not advance proceedings; Rule 30 – setting aside irregular steps served during bar period.
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9 March 2012 |
| February 2012 |
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Deliberate driving through closed level‑crossing booms constituted dolus eventualis; accused sentenced to twenty years’ imprisonment.
Criminal law – Murder based on dolus eventualis – Driving a passenger vehicle between closed level‑crossing booms into an oncoming train – High culpability and wilful disregard of safety; Sentencing – Minimum Sentencing Act (s.51(2)/Schedule 2) – substantial and compelling circumstances (age, personal history) permitting deviation; Restorative/non‑custodial sentence inappropriate; Public interest and deterrence paramount.
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28 February 2012 |
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Reported
An award based on an invalid arbitration agreement (no consensus) is unenforceable as contrary to public policy.
Foreign arbitral awards — recognition and enforcement — requirement of valid arbitration agreement and consensus between parties — New York Convention/Recognition & Enforcement of Foreign Arbitral Awards Act s3, s4(1)(a)(ii), s4(1)(b)(i) — arbitrator’s jurisdiction — public policy ground for refusal — effect of foreign statutory estoppel on jurisdictional challenges.
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24 February 2012 |
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Whether "substantial and compelling circumstances" justified departing from mandatory life sentences for an organised, violent cash‑in‑transit robbery.
* Criminal law — Minimum sentencing (Criminal Law Amendment Act 105 of 1997) — section 51(1) read with s51(3) — substantial and compelling circumstances — Malgas; Dodo.
* Mens rea — dolus eventualis v dolus directus — relevance to moral blameworthiness and minimum sentence enquiry.
* Sentencing — grouping counts for sentence to avoid double punishment; concurrent sentences under s39 Correctional Services Act.
* Firearms — joint possession of fully automatic weapons in organized robbery — no separate mitigation for mere joint possession.
* TRC amnesty — expunged convictions treated as first‑offender status for sentencing but does not automatically mitigate if moral blameworthiness is high.
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16 February 2012 |
| January 2012 |
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Enforcement of an emoluments attachment after provisional liquidation unlawfully continued proceedings and constituted void execution.
* Companies Act s359 – legal proceedings suspended and attachments void – continuation of civil proceedings and execution after commencement of winding-up prohibited; * Emoluments attachment orders – confirmation prior to liquidation but enforcement after commencement amounts to unlawful continuation/execution; * Voidness of post-commencement enforcement and requirement to restore funds to the liquidated estate.
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23 January 2012 |