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Citation
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Judgment date
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| December 2013 |
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Circumstantial evidence can establish the applicant’s knowledge that funds were proceeds of unlawful activity; conviction confirmed, sentence reduced.
* Criminal law – Money laundering (POCA s 4) – evidential proof of proceeds: State may prove specific unlawful source or rely on circumstances to infer criminal origin and accused's knowledge.
* Circumstantial evidence – credibility and mendacity – irresistible inference supporting conviction.
* Sentencing – principle of consistency – appellate reduction of sentence to align with co‑accused’s role and punishment.
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19 December 2013 |
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Applicant’s unregistered secondary trade mark SOPHIA protected against respondent’s use due to likelihood of passing off.
Passing off – unregistered secondary trade mark (fancy name) – distinctiveness/reputation acquired by SOPHIA through CWG auction exposure – likelihood of confusion/deception (aural and market contexts) – intention not necessary; likelihood suffices – final interdict and costs including senior counsel awarded.
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19 December 2013 |
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Reported
Applicant fleeing public‑order disturbances qualified for refugee status; Appeal Board improperly constituted and decisions set aside.
* Administrative law – Refugee appeal board – composition and quorum – statutory requirement that Appeal Board sit with chairperson and at least two other members and at least one legally qualified member – decision taken by single member invalid.
* Refugee law – proper application of s 3(b) (events seriously disturbing or disrupting public order) distinct from s 3(a) (persecution) – RSDO and RAB misapplied legal standard.
* Procedural fairness – disclosure of adverse reports and opportunity to respond – RSDO/RAB failed to afford fair hearing and adequate reasons.
* Review remedies – substitution justified in exceptional circumstances where remittal would be unjust or body appears biased.
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11 December 2013 |
| November 2013 |
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Reported
A High Court may enforce its maintenance orders by writ despite Maintenance Act enforcement procedures in the maintenance court.
* Maintenance law – enforcement – Whether Chapter 5 of the Maintenance Act precludes enforcement of High Court maintenance orders by writ of execution from the High Court; * Statutory interpretation – interaction between Maintenance Act and Superior Courts Act; * Election of remedies – whether an emoluments attachment order precludes subsequent High Court enforcement; * Civil enforcement – moratorium and enquiry procedures under Maintenance Act vs High Court execution.
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20 November 2013 |
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Reported
Whether a municipal speaker’s finding and suspension of councillors’ voting rights was ultra vires and unlawful.
Local government — internal council procedure — Speaker’s powers and limits under the Structures Act and the Code of Conduct; principle of legality; locus standi of provincial MEC to litigate in respect of council governance; intergovernmental dispute framework not engaged; unlawfulness and ultra vires suspension/revocation of councillors’ voting rights; limits on court-ordered compulsion of MEC investigatory action.
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12 November 2013 |
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Reported
Master’s authorisation of a s417/418 enquiry was reviewable and set aside after fraudulent non‑disclosure and procedural unfairness.
Companies Act s417–418 enquiry — Master’s authorisation — procedural fairness and PAJA applicability; fraudulent non-disclosure by opposing attorney vitiating administrative action; legality principle — fairness, rationality, transparency; review and setting aside of authorisation.
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11 November 2013 |
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Reported
Inability to annex a lost written contract does not extinguish a cause of action; secondary evidence and condonation are available.
Civil procedure – Rule 18(6) – written contracts – failure to annex contract because original destroyed or lost – secondary evidence admissible; Rule 27(3) condonation available – Rules procedural not substantive – Moosa distinguished.
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6 November 2013 |
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Non-compliance with Rule 46(3) will not invalidate a sale where the applicant had knowledge of the attachment and suffered no prejudice.
* Civil procedure – Execution against immovable property – Rule 46(3) – Service on owner, occupier and Registrar of Deeds – Non-compliance does not automatically vitiate sale; inquiry focuses on whether breach defeats rule’s purpose and causes prejudice (Todd v FirstRand Bank applied). * Evidence – Actual knowledge of attachment and prior conduct (payments to stop sales) relevant to prejudice inquiry.
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5 November 2013 |
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Summary judgment refused where scope of power of attorney and attorney-in-fact’s capacity raised triable issues.
Summary judgment — Uniform Rule 32(2) verification by corporate deponent; domicilium clauses and jurisdiction; incomplete annexure to simple summons; scope of general power of attorney; capacity of attorney-in-fact to bind principal; bona fide triable defences precluding summary judgment.
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4 November 2013 |
| October 2013 |
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Reported
Applicants succeeded: municipal approvals set aside; reliance on elderly affidavit for ground-level height determination prohibited.
Administrative law – judicial review of municipal planning decisions – NBRA s7 approval and LUPO departures – functus officio and irrationality – procedural fairness (audi alteram partem) – admissibility and weight of land surveyor certificates and historical affidavits in determining "natural ground level" – delay rule in pre-PAJA review proceedings.
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30 October 2013 |
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Separation under Rule 33(4) refused; onus on due diligence to be addressed provisionally at trial under Rule 39(11).
Admiralty/insurance — application for separation of issues under Rule 33(4) — MSA warranty and Inchmaree proviso — tactical denials in pleadings permissible — overlapping evidence defeats separate hearing — incidence of onus on want of due diligence is res nova and should be provisionally addressed at trial under Rule 39(11).
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30 October 2013 |
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Reported
Claimant failed to prove patrimonial loss where future earnings depended on continued tax evasion and business prospects were uncertain.
Road Accident Fund — loss of earning capacity — requirement to prove patrimonial loss on balance of probabilities — public policy bars awarding damages for future earnings dependent on continued unlawful conduct (tax evasion) — risk of prosecution and imprisonment as contingency — evidential sufficiency regarding foreign tax law and likelihood/timing of prosecution; reliability of actuarial models vs fair lump-sum award.
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23 October 2013 |
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Reported
Administrative reinstatement under s 82(4) restores corporate personality and property retrospectively; validation of acts requires s 83(4) relief.
• Arbitration — s 31(1) Arbitration Act — court’s inquiry limited to whether award can properly be made an order; illegality not apparent on award must be pleaded in arbitration or set aside under s 33.
• Companies Act 2008 — ss 82 and 83 — effect of administrative reinstatement under s 82(4): retrospective restoration of corporate personality and property, but not automatic validation of corporate acts.
• Companies Act 2008 — s 83(4) — court may, on application by an interested person, make just and equitable orders (including validation of acts during deregistration) after dissolution/reinstatement.
• Companies Act 1973 s 38(1) — distinction between direct object of financial assistance and ultimate goal; transaction held not to contravene s 38(1).
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22 October 2013 |
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Reported
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7 October 2013 |
| September 2013 |
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A regulator and its delegated association held liable for failing to prevent illegal commercial tandem paragliding, causing the applicant’s injuries.
Aviation law – paragliding – status of tandem flights for reward – carrier’s (air service) licence requirement – AIC 18.23 and proposed Parts 24/94/96 – ultra vires exemption; Administrative delegation – CAA, Aero Club, SAHPA – continuing statutory accountability; Delict – omissions by public authorities and statutory bodies – duty of care, wrongfulness and causation; Volenti non fit iniuria – not available to statutory bodies where activity proscribed by statute and applicant unaware of illegality.
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20 September 2013 |
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Appellate court substituted a disproportionate custodial sentence after finding the magistrate’s demeaning conduct and misdirected sentencing.
* Criminal law – Sentencing – Disproportionate custodial sentence set aside where court failed to properly weigh plea, remorse, restitution, illness and primary caregiver status.
* Judicial conduct – Demeaning, sarcastic remarks by magistrate undermine duty to uphold dignity and fair sentencing in constitutional democracy.
* Sentencing principle – Proper application of S v M: special regard to children’s interests without permitting undue avoidance of appropriate punishment.
* Appeal – Substitution of sentence with suspended imprisonment; referral to Magistrate’s Commission.
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20 September 2013 |
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Application for repayment of alleged overpaid maintenance dismissed; payments found not unjustified and no duress or excusable mistake.
Family law – maintenance – claim for repayment of alleged overpayments – condictio indebiti – excusability of mistake – duress – enrichment where payments applied to minor children’s maintenance – parol evidence and variation of consent maintenance order – public policy and best interests of the child.
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11 September 2013 |
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Reported
Amended s 35(3) requires sworn evidence and limits non‑suspension to circumstances relating to the offence.
National Road Traffic Act s 35(3) — amended requirement of sworn evidence before non‑suspension order; 'circumstances relating to the offence' restricts matters courts may consider — excludes unrelated personal circumstances; appellate review of trial court’s exercise of s 35(3); prosecutions’ duty to test s 35(3) evidence.
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10 September 2013 |
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Court ordered disclosure of foreign arbitration documents relevant to causation and limitation despite asserted arbitration confidentiality.
Arbitration — confidentiality — no absolute implied duty absent agreement; exceptions where disclosure is consented, court-ordered, reasonably necessary to protect legitimate interests, or required by interests of justice; discovery under Uniform Rule 35(3)/(7) — relevance test; Merchant Shipping Act s261 limitation plea — related foreign arbitration documents may be discoverable when relevant to causation and limitation issues.
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5 September 2013 |
| August 2013 |
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Reported
Filing a business rescue application with the Registrar suspends pending winding‑up under section 131(6) of the Companies Act.
Companies Act — Business rescue v liquidation — s 131(6) suspension of liquidation pending adjudication; meaning of "made" — filing/lodging with Registrar constitutes making; s 133 moratorium applies once business rescue proceedings commenced; purposive interpretation to avoid absurdity; creditors as affected persons may enforce time limits; possible personal liability for director/member for wasted costs; referral of attorneys' conduct to Law Society.
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23 August 2013 |
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The court held that dual jurisdiction for insolvent company winding-up applications remains under the Old Act pending new legislation.
Company law – Winding-up – Jurisdiction – Old Companies Act 61 of 1973, s 12 – New Companies Act 71 of 2008, Schedule 5 Item 9 – Dual jurisdiction for liquidation (registered office or principal place of business) remains applicable for insolvent companies pending alternative legislation – Decision in Sibakhulu Construction not followed to extent inconsistent.
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23 August 2013 |
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Reported
Mandatory placement of child offenders on the sex-offender register without a hearing is unconstitutional; courts must have discretion and hear representations.
* Sexual Offences Act s 50(2) — National Register for Sexual Offenders — mandatory inclusion of convicted persons' particulars — application to child offenders.
* Child Justice Act — rehabilitative and best-interests principles — potential conflict with peremptory register inclusion.
* Constitutional rights — dignity, privacy, fair hearing (s 34), freedom of trade — limitation analysis under s 36.
* Audi alteram partem — obligation to afford accused opportunity to make representations before register order.
* Remedy — declaration of invalidity; suspended order; reading-in to afford discretion and a right to be heard; referral to Constitutional Court.
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21 August 2013 |
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14 August 2013 |
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Reported
An applicant must identify the right alleged; replacing a via simpliciter route with an adequate alternative is not spoliation.
* Mandament van spolie – requirement to identify the nature of the right alleged to be dispossessed; quasi-possession vs physical possession. * Servitudes – via simpliciter; servient tenement may alter route provided alternative is adequate and non-prejudicial. * Replacement of an existing route by an adequate alternative over the same servient land is not spoliation. * Admission of subsequent events as fresh evidence on appeal requires very special circumstances and was refused.
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8 August 2013 |
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Reported
An ambiguous email did not constitute the applicant's contractual demand, and enforcing acceleration would breach public policy.
Contract – loan agreement – clause requiring written demand to trigger default; meaning of “demand”; acceleration clause – whether trivial unpaid mora interest can trigger full acceleration; public policy and constitutional values (good faith/ubuntu) in contract interpretation; enforcement of cession in securitatem debiti (not reached).
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5 August 2013 |
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Reported
Ineffective pre-trial legal assistance leading to an incriminating statement required exclusion and acquittal; other appellants’ sentences upheld.
* Criminal procedure – admissibility of statement – right to legal representation – ineffective assistance where counsel fails to prevent client’s self-incriminating statement.
* Constitutional right against self-incrimination – compelled or unprotected admissions – exclusion of statement where counsel’s basic duties not performed.
* Sentencing – minimum-sentence provisions (s 51(1) v s 51(2) of Act 105/1997) – indictment specification and fair-trial implications – appellate confirmation of sentence where substantive rights unimpaired.
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5 August 2013 |
| July 2013 |
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School‑closure decisions under s33 are administrative action governed by PAJA; only one closure set aside for procedural unfairness.
* Administrative law – school closure decisions under s33 Schools Act constitute administrative action subject to PAJA. * Constitutional law – s33(2) not unconstitutional; ministerial discretion constrained by constitutional rights. * Procedural fairness – adequacy of initial reasons and requirement to give gist of case depends on context; material new reasons not previously disclosed vitiate process. * Review grounds – irrationality/arbitrariness and material error of fact assessed with caution in polycentric, policy‑laden decisions.
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31 July 2013 |
| June 2013 |
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Reported
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26 June 2013 |
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Reported
Whether substantial and compelling circumstances justify deviation from statutory minimums for rape, murder and aggravated robbery — none found.
Sentencing — triad approach — application of section 51(1) Criminal Law Amendment Act and Schedule 2 — rape and murder attracting life imprisonment — substantial and compelling circumstances threshold — robbery with aggravating circumstances prescribed minimum — concurrency and effective sentence — declaration unfit to possess firearm.
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14 June 2013 |
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Reported
Accused convicted of rape, murder, robbery and attempted murder based on DNA, similar‑fact evidence and admitted hearsay.
* Criminal law – circumstantial and similar‑fact evidence – cumulative assessment to infer identity and intent.
* Forensic DNA – semen on panty and vaginal swab mixtures as identification and to infer penetration.
* Hearsay – anonymous informant admissible under s 3(1)(c) Law of Evidence Amendment Act when corroborated and in interests of justice.
* Identification – dock and contemporaneous identification evaluated with caution and corroboration.
* Procedure – section 212(12) affidavit evidence of absent pathologist permitted with interrogations.
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11 June 2013 |
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Reported
Representative purchaser lacked standing; sale agreement void and unrectifiable for failing Alienation of Land Act formalities.
Contract/Property — Sale of land — Identity of parties and signatures required by s 2(1) Alienation of Land Act — Agreement void for vagueness where purchaser described only as future 'shelf company' — Representative who signed on behalf of purchaser lacks personal locus standi — Invalid formal document incapable of rectification.
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6 June 2013 |
| May 2013 |
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Anton Piller order set aside for lack of prima facie contract, no real risk of destruction, and abuse of ex parte procedure.
Anton Piller orders — requisites: prima facie cause of action, specified vital documents, real and well‑founded risk of destruction — ex parte relief and urgency — abuse of process — Plascon‑Evans approach to disputed facts — costs on attorney and client scale.
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29 May 2013 |
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Reported
Failure to inform an unrepresented accused of appeal/review rights invalidates the conviction and sentence.
* Criminal procedure – automatic review (s 304 CPA) – reviewing court may intervene where omission to inform accused of review/appeal rights leads to potential miscarriage of justice. * Constitutional right to fair trial – duty to inform unrepresented accused of right to appeal/review. * Remedy – setting aside conviction and sentence and refund of fines paid.
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21 May 2013 |
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Delegate’s withdrawal of permanent residence upheld where evidence supported inference that bona fide spousal relationship ceased within three years.
Immigration law – withdrawal of permanent residence – section 26(b)(ii) lapse where "good faith spousal relationship" ceases within three years – Regulation 33 definition and investigative powers – standard of review under PAJA and Constitution – inferential reasoning and credibility in administrative decisions.
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8 May 2013 |
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Reported
Rule 35 discovery notices cannot be used to delay summary judgment; summary judgment proper where no bona fide defence is shown.
* Civil procedure – Summary judgment (Rule 32) – purpose and procedure – defendant cannot defer summary judgment by invoking discovery notices under Rule 35(12) or (14).
* Civil procedure – Discovery (Rule 35) – pre-trial documents for pleading – not a substitute for requirements to oppose summary judgment.
* Summary judgment – requirements for plaintiff’s verifying affidavit and for defendant to show bona fide defence or furnish security.
* Security and special execution – enforcement against surety and declaration of property specially executable.
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3 May 2013 |
| April 2013 |
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Reported
Cessionary cannot appropriate life-policy proceeds before secured debt is due; executor may protect cedent’s reversionary interest.
Cession in securitatem debiti – analogous to pledge – cessionary’s right to receive but not necessarily appropriate proceeds; cedent’s reversionary interest vests in estate on death; duty of cessionary to act as bonus paterfamilias; executor entitled to protect reversionary interest and to challenge insurer’s reduced payment.
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30 April 2013 |
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30 April 2013 |
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Failure to register for VAT or to submit returns does not automatically amount to criminal fraud absent a duty to disclose and intent to defraud.
Criminal law – fraud – elements: misrepresentation and intention to defraud – silence/non-disclosure may amount to fraud only where a legal duty to disclose exists; VAT law – statutory offences for failure to register and failure to submit VAT returns; mens rea for theft where VAT is deemed included; sentencing – appellate interference where trial court’s discretion is vitiated or sentence is disturbingly inappropriate.
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30 April 2013 |
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Reported
A 100% shareholder with use and an expectancy to acquire a vessel has a sufficient insurable interest to claim the insured value.
* Admiralty/Marine insurance – interpretation of policy and Institute Fishing Vessel Clauses – ‘loss’ as physical loss of vessel.
* Insurable interest – flexible South African approach to distinguish insurance from wagering.
* Shareholder’s interest – 100% shareholder may have insurable interest in company asset sufficient to claim insured value.
* Valued policy – entitlement to insured sum on total loss without proving patrimonial diminution.
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29 April 2013 |
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Mandatory mediation/arbitration under reg 2(5) applies to s 46 interim‑contract disputes, not s 41 negotiated‑contract negotiations; application dismissed.
• Administrative law / transport law – Construction of National Land Transport Act: distinction between s 41 negotiated contracts and s 46 existing/interim contract amendments.• Regulation 2(5) read restrictively – mandatory mediation/arbitration under regs 6–9 applies to s 46 disputes, not to s 41 negotiation processes.• Interim contracts assigned to provinces make the province the relevant contracting authority under s 46(2).• Municipal s 41 negotiating duty requires good faith and reasonableness but does not impose a duty to agree or permit compulsory mediation/arbitration.
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26 April 2013 |
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Reported
Court upheld special plea: prospective matrimonial loss claims on breach of promise are not a valid contractual cause of action.
* Family law – breach of promise to marry – validity of contractual action for breach of promise – whether recovery of prospective matrimonial losses permissible in light of constitutional values and changing mores.
* Common law development – s 39(2) Constitution – duty to reassess actions that no longer reflect boni mores and public policy.
* Precedent – Van Jaarsveld v Bridges: persuasive obiter dicta; not binding where ratio based on factual findings.
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24 April 2013 |
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Extrinsic evidence can cure a s6 defect: a suretyship signed before a final loan agreement was held valid and enforceable.
Suretyships – s6 General Law Amendment Act 50 of 1956 – requirement that terms be embodied in writing – incorporation by reference – admissibility of extrinsic evidence to identify principal debt – principal obligation may be future – Plascon-Evans test for disputes of fact.
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24 April 2013 |
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Court held s83(4) enables judicial revival of administratively deregistered entities, restoring assets and voiding execution sale.
Companies/Close corporations – Deregistration as removal from register equals dissolution – s82(3) and s83(1)–(4) Companies Act 2008 – Judicial revival under s83(4) available for administrative deregistration – Alternative remedies: s82(4) administrative reinstatement by CIPC or s83(4) court relief – Effect of voiding dissolution: assets/liabilities re-vest; acts during dissolution remain of no effect – Close corporations deregistered pre-1 May 2011 can be restored by court order under s83(4).
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19 April 2013 |
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Reported
Court may void dissolution and restore a deregistered close corporation under s83(4), re-vesting assets and liabilities.
* Corporate law — Deregistration and dissolution — application of s 83(4) of the Companies Act 71 of 2008 to administrative deregistration under s 82(3) and to close corporations via amended s 26 CC Act.
* Remedies — administrative reinstatement (s 82(4)) v judicial relief (s 83(4)) — court may restore deregistered entities where compliance with administrative prerequisites is impractical.
* Effect of declaration void — assets and liabilities immediately prior to dissolution re-vest; acts during dissolution generally not validated.
* Execution sales — sale in execution while corporation deregistered may be void (property bona vacantia).
* Regulations — prescribed requirements for administrative reinstatement are not a precondition to court-ordered restoration under s 83(4).
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19 April 2013 |
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Reported
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8 April 2013 |
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Reported
Warrantless targeted searches under the Customs Act largely unconstitutional; limited warrantless searches allowed for regulated premises with safeguards.
Customs Act — s 4(4)–(6) — warrantless entry and search — privacy right (s 14) — Magajane s36 analysis — routine (random/compliance) vs non-routine (targeted/enforcement) searches — designated premises (licensed warehouses, rebate stores, pre-entry facilities) — limits on warrantless searches — interim reading-in and 18‑month suspension of invalidity.
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8 April 2013 |
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Reported
Ex post facto Treasury approval can validate a liquidated- estate claim; lack of prior consent alone does not justify expungement.
Exchange Control Regulations (Reg 10(1)(c)) – effect of failure to obtain prior Treasury/SARB consent on contractual claims; concursus creditorum and proving claims in liquidation; ex post facto Treasury approval; review under s151 of the Insolvency Act; expungement under s45.
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5 April 2013 |
| March 2013 |
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Reported
Transfers under a settlement can be realisable property and affected gifts under POCA and thus be restrained.
POCA – Chapter 5 restraint – affected gift – settlement/compromise cannot shield proceeds of crime; mortgage bonds and cash payments are realisable property; innocent recipients not entitled to proceeds; joinder of indirect-interest shareholders unnecessary.
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27 March 2013 |
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A s129 NCA notice is a peremptory prerequisite; late compliance after adjournment does not prevent prescription.
National Credit Act – s129(1)(a) notice prerequisite to enforcement – s130(4) adjournment and compliance – effect on prescription – prospective operation of NCA requirements; premature summons does not interrupt prescription.
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22 March 2013 |
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Court interdicted closure of rural schools where public hearings and consultation were procedurally inadequate, protecting learners' right to basic education.
Administrative law – Schools Act s33 – requirement to inform governing bodies, to grant reasonable opportunity to make representations and to conduct public hearings; delegation of functions (s62) permissible; adequacy of public hearings and meaningful consultation; right to basic education (s29) and state obligations; interim interdict pending review and separation of powers.
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19 March 2013 |