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Citation
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Judgment date
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| January 2023 |
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Where SARS fails to prove the pleaded behavioural basis for an understatement penalty, the penalty cannot be confirmed.
Tax — Understatement penalty — burden of proof on SARS to justify behavioural category in s223 table — pleadings (Rule 31/34) delimit issues — Tax Court may increase penalty only if issue pleaded and proved — costs under s130(1)(a) where SARS' assessment unreasonable.
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31 January 2023 |
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Owner entitled to rectification of lease; had locus standi and eviction with payment of arrears was granted.
* Property law – eviction – locus standi to sue where written lease misidentifies lessor; rectification of document to reflect true contracting party.
* Procedural law – amendment/rectification in application proceedings; Rule 28 objections, misjoinder and late amendment addressed.
* Contract law – rectification principles (Spiller, Lazarus, Propfokus): court may correct a document that does not reflect parties’ true agreement.
* PIE – assessment of just and equitable factors in eviction; consideration of respondents’ means, alternative accommodation and arrear rentals.
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30 January 2023 |
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Adjudicator erred by applying spoliation law to invalidate a contractual governance clause; clause 5.13 not contrary to public policy.
Community schemes — contractual governance provisions — validity and public policy — adjudicator incorrectly applied spoliation law to contractual validity — clause suspending privileges for defaulting members not inherently contrary to public policy.
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30 January 2023 |
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Adjudicator erred by applying spoliation law to invalidate a contractual governance clause; clause 5.13 not contrary to public policy.
Community Schemes Ombud Service Act s57 – appeals limited to questions of law; voluntary association constitutions are contractual; public policy test for contractual provisions; improper application of spoliation law to contractual validity.
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30 January 2023 |
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Court orders eviction under PIE: applicants’ termination of leases lawful and water-dispute not a defence; eviction found just and equitable.
* Property law / PIE – Eviction of unlawful occupiers – Valid termination of month-to-month leases – Non-payment of rent – Water/supply dispute not a bar to eviction – Just and equitable inquiry under s 4(6)-(8) and s 6(1). * Private owner’s proprietary rights v occupiers’ socio‑economic vulnerability – only exceptional circumstances will preclude eviction of unlawful occupiers.
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30 January 2023 |
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An application for leave to appeal a Rule 43 interim maintenance order was set aside as an irregular step; enforcement and contempt matters postponed.
Family law – interim maintenance – Rule 43 order – non‑appealability under s16(3) Superior Courts Act and S v S – setting aside notice for leave to appeal as irregular step – contempt application not ripe – emoluments attachment postponed for lack of service.
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24 January 2023 |
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Collision during police pursuit was accidental; plaintiff failed to prove assault or negligence.
Delict — injury during police pursuit — whether collision was intentional assault or accidental/slip — onus on plaintiff to prove wrongfulness and negligence — resolution of conflicting, fast-moving witness accounts by credibility and probabilities — single witness account versus corroborated police evidence.
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20 January 2023 |
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Reported
Representative director’s removal for alleged conflict and misconduct was procedurally unfair, irrational and set aside.
* Administrative law – Ministerial removal of statutory regulator director – nature of decision (administrative v executive) and applicability of PAJA and audi alteram partem. * Procedural fairness – predetermination, failure to consider representations, and requirement to consult constituencies represented by a board member. * Conflict of interest/misconduct – limits to removing representative directors for prior public advocacy; post-hoc rationalisations impermissible. * Judicial review – irrationality, bad faith and setting aside of unlawful removals.
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19 January 2023 |
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Court allowed amendment of particulars of claim, dismissing exception that pleadings were vague and excipiable.
* Civil procedure – amendment of pleadings – leave to amend should be granted unless mala fide or causing irremediable prejudice.
* Pleadings – exception for vagueness and embarrassment – attacks whole cause of action; excipient bears onus to show no cause of action disclosed.
* Pleadings – pleading in the alternative is permissible; material facts must be stated with sufficient particularity to enable a defence.
* Contract law – disputed issues of interpretation and suspensive conditions are typically matters for trial, not for striking out on exception.
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19 January 2023 |
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Reported
A public university’s cancellation and re-advertisement of a student accommodation tender is administrative action; applicant failed to prove reviewable irrationality.
* Administrative law — PAJA — whether cancellation of a public-university tender (after rescission of award) is administrative action — held to be administrative action where procurement is integral to institutional public function.
* Constitutional law — organ of state — public higher education institution substantially state-funded is an organ of state for procurement of student accommodation.
* Procurement law — applicability of PPPFA and Preferential Procurement Regulations — PPPFA/regulations do not apply to institution not identified in schedules; contractual reservation clauses do not displace public-law duties.
* Judicial review — grounds: failure to decide; non-compliance with mandatory procurement regulation; irrationality — failure-to-decide and regulation grounds dismissed; irrationality not established where applicant did not request or adduce administrator’s reasons.
* Remedy — substitutionary relief refused; costs awarded to respondent.
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19 January 2023 |
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Appellate court upholds concurrent prison sentences for xenophobic murder, finding sentencing discretion properly exercised.
Criminal law — Sentencing — Murder and attempted murder in xenophobic attack — aggravating effect of xenophobia — statutory minimum sentences (s 51 Criminal Law Amendment Act) — concurrent sentencing under s 280(2) Criminal Procedure Act — appellate review of sentencing discretion (disturbingly inappropriate/misdirection test).
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19 January 2023 |