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Citation
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Judgment date
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| September 2023 |
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Executor entitled to court-ordered access and cooperation to sell estate property after heirs obstruct winding up.
Administration of estates – executor’s duty to sell in terms of will – section 47 Master’s approval where heirs cannot agree – JM33/section 42(2) operative once transfer follows sale – testamentary capacity allegation inadequately proved – court may order access and cooperation where heirs frustrate winding up of estate.
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22 September 2023 |
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Liquidators failed to establish s 26(1) dispositions without value; relief granted under section 29 for R240,000.
Insolvency Act s 26(1) – disposition not made for value – onus to prove that immediately after disposition liabilities exceeded assets; trustees must plead full statutory period and financial position; nature/timing of transactions relevant to value; illegality of scheme does not automatically render repayments dispositions without value; alternative relief under s 29 (voidable preferences).
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15 September 2023 |
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An interim, time-limited interdict restrained the bank from closing applicants' accounts pending main litigation, subject to FIC reporting exceptions.
• Interim interdict — requirements: prima facie right (open to doubt), irreparable harm, balance of convenience, no adequate alternative remedy.
• Constitutional and statutory rights — s 22 (freedom to trade) and s 34; Equality Act (s 13) — prima facie discrimination allegations for interim relief.
• Banks’ regulatory obligations — FICA (ss 21C, 21E, s 29 reporting) may justify termination but are contentious and not determinable on interim papers.
• Balance of convenience — prior undertakings by respondent, likelihood of irreparable commercial harm, and uncertain duration of main proceedings justify limited time-bound relief.
• Remedies — limited interim interdict with leave to apply for extension or discharge on good cause shown; costs reserved to main matters.
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14 September 2023 |
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Sale by a purported curator bonis without Letters of Curatorship and Master’s consent was unenforceable; application dismissed with audit and punitive costs.
Administration of Estates Act – curator bonis – requirement to obtain Letters of Curatorship (s72) – protection of de cujus (s71) – alienation of immovable property by curator requires Master’s or court consent (s80, s81) – non-compliance renders transaction unenforceable; suspensive condition and waiving – public policy and bona fides; evidentiary burden to prove payment of purchase price; audit and reporting of possible misappropriation.
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14 September 2023 |
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Identification, common purpose and dolus eventualis upheld; convictions and sentences confirmed, concurrency adjusted so overall effect is life imprisonment.
Criminal law – Identification – admissibility and sufficiency of identification evidence where scene was well lit and witnesses had close opportunity for observation. Criminal law – Common purpose and dolus eventualis – liability for murder where co‑offenders embarked on armed robbery and death was a reasonably foreseeable consequence. Robbery – armed robbery with aggravating circumstances – theft element proved where violence and appropriation formed a continuous act. Evidence – State permitted to re-open case to admit post‑mortem and chain evidence; defence afforded opportunity to re-open. Sentencing – prescribed minimums under s 51 CLAA; time in custody and personal circumstances not substantial and compelling; duty to consider cumulative effect of multiple determinate sentences; interplay of s 280(2) CPA and s 39(2)(a)(i) Correctional Services Act.
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12 September 2023 |
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Magistrate erred by refusing suspension and unlawfully ordering summary removal of children; sentence set aside and substituted.
Criminal law – sentencing – Drugs and Drug Trafficking Act s 17(e) does not preclude suspension of imprisonment; Children’s Act s 47 orders require Children’s Court proceedings; sentencing courts must obtain pre-sentencing reports and give individualized consideration to children’s best interests (S v M).
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8 September 2023 |
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A magistrate’s hostile, cross-examining intervention vitiated the trial, so conviction and sentence were set aside.
Criminal procedure — Fair trial — Role of presiding officer — Judicial questioning versus ‘entering the arena’ — Excessive/partisan questioning may vitiate trial; conviction and sentence set aside where magistrate effectively aided prosecution and accused’s version not inherently improbable.
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8 September 2023 |
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Appellant’s self‑defence plea upheld where eyewitness contradictions and radio recording showed a real, immediate threat.
Criminal law — self‑defence and putative self‑defence — objective test but facts viewed from defender’s perspective in sudden threat; Evaluation of evidence — credibility and reliability of eyewitnesses; Use of contemporaneous audio recordings and CCTV as corroborative evidence; Onus — State must disprove self‑defence beyond reasonable doubt.
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5 September 2023 |
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Applicant’s plea amendments—including mediation referral and withdrawal of admissions—largely refused as inconsistent with contract and prejudicial.
Civil procedure – Amendment of pleadings; withdrawal of admissions requires full explanation and bona fides; amendments refused if inconsistent with contract dispute-resolution clause or causing irremediable prejudice; mediation vs litigation under contractual clause 12.2.4; costs award where amendment largely unsuccessful.
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1 September 2023 |
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Reported
Tribunal correctly refused condonation; arbitrator’s interdiction exceeded pleadings; appeal dismissed with costs.
Arbitration — AFSA rules — Article 22.2 time-limits for appeal and cross-appeal mandatory; no condonation by appeal tribunal absent agreement; party autonomy limits arbitrator powers; arbitrators bound by pleadings — relief outside pleaded cause incompetent; review under s33(1)(b) requires gross irregularity affecting fair determination.
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1 September 2023 |
| August 2023 |
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Sustained, malicious defamatory publications against legal practitioners were unlawful; plaintiffs awarded substantial damages and punitive costs.
Defamation – sustained, repetitive and wide publication of allegations of criminality against legal and fiduciary practitioners; hearsay admissibility under s 3 Law of Evidence Amendment Act; failure to prove truth or privilege; malice and repetition as aggravating factors; substantial damages and punitive costs (attorney-and-client and two counsel).
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29 August 2023 |
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Relocation to the UK refused: not in children’s best interests due to attachment, ADHD and parental instability.
Family law – relocation of minors – application for leave to remove children permanently abroad – best interests paramount. Parenting – primary caregiver status, parental attachments and impact on children with special needs (ADHD). Evidence – role and weight of expert reports and children’s expressed wishes where influence and limited experience may affect reliability. Practicalities – adequacy of proposed schooling, financial stability of relocating parent, and feasibility of meaningful contact with non-relocating parent.
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28 August 2023 |
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Master’s unexplained decision to permit disregard of set-off set aside; court found pre-liquidation set-off not in ordinary course and disregarded.
Insolvency law – s46 set-off – ordinary course of business test – related-party transactions, backdating and perfected cessions – procedural fairness and requirement to give reasons – wide review under s151 permitting de novo determination.
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28 August 2023 |
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Reported
Decade‑late amendments adding monetary claims against the Minister of Police dismissed for delay, prescription and lack of triable issue.
Rule 28(4) – amendment and condonation – excessive unexplained delay bars amendment; Prescription Act – claims for monetary relief arising 2012 prescribed by 2015; Constitutional damages/declaratory relief which seeks monetary compensation may constitute a 'debt' for prescription purposes; State duties – SAPS positive obligation limited and context-specific; Late amendment refused where no triable issue or ongoing breach established.
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28 August 2023 |
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Whether the 180-day PAJA period runs only after an internal appeal outcome is communicated, not from preliminary correspondence.
- Administrative law: PAJA s 7(1) — calculation of the 180-day time period; commencement depends on conclusion and communication of internal remedies.
- Internal remedies: appeal not concluded where correspondence shows requested information was outstanding; time runs from communicated outcome.
- Remedy: where no definitive internal decision exists, matter should be remitted to administrative decision-maker rather than substituted by court.
- Procedural fairness: parties should be afforded opportunity to address time-bar issues raised late in proceedings.
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28 August 2023 |
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Appellant’s conviction set aside: State failed to prove robbery beyond reasonable doubt; appellant’s version reasonably possibly true.
Criminal law – robbery – proof beyond reasonable doubt – witness credibility and inconsistencies regarding lighting, identification and alleged knife; inspection in loco – procedural requirements and inadmissibility of unrecorded observations; accused’s version reasonably possibly true; competent verdicts (theft) considered and rejected.
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23 August 2023 |
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Pleadings failed to show deceased drafted or caused the 2021 document; statutory will formalities strictly applied, exceptions upheld.
Wills — revocation — s 2A(c) Wills Act — strict approach: deceased must have drafted or caused a document to be drafted and intended revocation; mere oral instruction insufficient. Wills — validation — s 2(3) Wills Act — strict and narrow application; document must be shown to have been intended by the deceased to be his will. Lex non cogit ad impossibilia — principle does not readily excuse non‑compliance with Wills Act formalities; requirements for its application not met on pleaded facts. Civil procedure — exception — pleading must disclose cause of action; court assumes pleaded facts true and weeds out claims lacking legal foundation.
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22 August 2023 |
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Reported
Applicant failed to show exceptional circumstances under s 105 TAA to bypass objection and appeal; review struck and directive refused.
Tax — TAA s 105 and PAJA s 7(2)(c) — taxpayer must exhaust objection and appeal in TAA unless court directs otherwise — "exceptional circumstances" required for s 105 directive — exceptional = unusual/out of the ordinary — point of law or asserted factual error not ordinarily exceptional — GAAR (s 80A et seq.) disputes are complex and ordinarily belong in the Tax Court — review struck for failure to obtain s 105 directive.
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18 August 2023 |
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Termination by contractual notice was valid; unpleaded public policy attack disallowed; application dismissed with costs including attorney de bonis propriis.
Contract law – termination by notice: termination clause invoked validly where contractual notice requirement met – motive irrelevant; Pleading and procedure – parties must plead and prove public policy challenges; Motion proceedings – inadmissibility of late hearsay material and unsuitability for resolving disputed factual/credibility issues; Civil procedure – Rule 6(15) strike out of scandalous, vexatious and defamatory allegations; Costs – attorney-and-client costs and costs de bonis propriis where attorney’s conduct materially deviates from expected standards and attempts to manufacture urgency.
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18 August 2023 |
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Referral to oral evidence refused and claim dismissed for failing to establish a written, tacit or ratified contract; costs awarded.
• Civil procedure – referral to oral evidence – Rule 6(5)(g) – refusal where request is fishing expedition, roving inquiry, or seeks amplification of inadequate affidavits.
• Contract – requirements for proving written, tacit or ratified agreement – necessity for specific, unequivocal conduct and documentary proof.
• Pleadings/evidence – applicant’s failure to produce tender, contract or particulars and failure to file proper replying affidavit fatal to motion.
• Costs – attorney-and-client costs awarded for abusive litigation; limitation to costs of one counsel.
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17 August 2023 |
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Motion dismissed and referral to oral evidence refused as a fishing expedition; attorney-and-client costs awarded to respondent.
Motion procedure – referral to oral evidence (Uniform Rule 6(5)(g)) – limits on fishing expeditions and roving inquiries; Contract law – requirements for written, tacit or ratified agreement – need for unequivocal conduct and pleaded facts; Procedural law – dismissal of motion where applicant fails to disclose cause of action or real dispute of fact; Costs – attorney-and-client scale for abusive or vexatious litigation.
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17 August 2023 |
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Reported
Master’s failure under s47 is reviewable; court remits decision to Master with directions, substitution refused.
Administration of estates — s47 Administration of Estates Act — sale of immovable property — section governs manner and conditions of sale, not decision to sell — executor’s duty to realise assets; Master’s oversight role — Master’s failure to decide is reviewable administrative action — substitution versus remittal — court not in as good a position as Master; remit with directions to call for representations.
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16 August 2023 |
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Reported
Summary judgment upheld where defendant’s bare plea disclosed no bona fide defence; retention of deposit during Covid‑19 lockdown deemed unfair.
Contract law – summary judgment – bare denial/bald plea discloses no bona fide defence; procedural requirement to plead facta probantia; inability to raise new, materially inconsistent defences in opposing affidavit; unenforceability/unfairness of non‑refundable deposit clause in exceptional Covid‑19 lockdown circumstances; public policy and impossibility of performance considerations.
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15 August 2023 |
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Whether delivering a replication simultaneously with a summary judgment application renders the step irregular under Rule 30.
Civil procedure - summary judgment (Rule 32) - interpretation of amended Rule 32(2)(a) and (4) - simultaneous delivery of replication with summary judgment application - Rule 30 irregular step and prejudice inquiry - incorporation by reference into Rule 32 affidavit - reliance on Task Team memorandum - waiver issue - conflicting authorities.
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15 August 2023 |
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A counterclaim not shown on the pleadings to arise from the divorce falls outside Regional Magistrates’ Court jurisdiction.
Magistrates’ Courts – jurisdiction in divorce matters – s29(1B) Magistrates’ Court Act; "any question arising therefrom" requires a sufficient link to the divorce; jurisdiction determined by pleadings; s7(5)(d) Divorce Act inapplicable absent a claim for division of assets; marriage out of community of property not determinative.
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14 August 2023 |
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Warrant and attachment set aside as school fees were already reimbursed; condonation granted but respondent ordered to pay wasted and condonation costs.
Civil procedure – condonation for late filing of answering affidavit – discretion to admit late papers where no prejudice and defence has merit; Interpretation of contract – triad of text, context and purpose – clause requiring payment on date of receipt of pension funds does not mean payment from those funds; Motion proceedings – admission of new matter in replying affidavit – exceptional circumstances and respondent’s failure to address new allegations; Execution law – setting aside warrant and attachment where debt already satisfied or reimbursed; Costs – order for wasted costs and costs of condonation; no order as to costs in main application.
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11 August 2023 |
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Condonation granted; execution warrant and attachment set aside after respondent was shown reimbursed for alleged school fees; costs allocated accordingly.
Family law – divorce settlement interpretation – clause requiring payment of children’s school fees – construction of contractual clause (text, context, purpose) and reliance on subsequent conduct; civil procedure – condonation for late affidavit – exercise of discretion where delay unexplained but no prejudice and bona fide defence exists; execution procedure – setting aside warrant and attachment where debtor demonstrates reimbursement of alleged arrears; costs – wasted costs, condonation costs, and no order as to costs in main application.
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11 August 2023 |
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Executive Mayor’s dismissal of appeal reviewed and set aside for fettering discretion and error of law; matter remitted for reconsideration.
Administrative law – review – fettering of discretion – municipal development charges policy – paragraph 9 discretion vs paragraph 14.1 guidance – adjustment of bulk services contributions; Land use planning – development charges credit – reliance on SPLUMA principles – error of law; Remedy – review and remittal; Costs including two counsel.
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10 August 2023 |
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Reported
Pending action does not bar liquidation where cause of action differs and the debt is not bona fide disputed.
Company law – liquidation – lis alibi pendens: pending action for same monetary claim does not bar liquidation where cause of action and relief differ; indebtedness and insolvency – an acknowledgement of debt and statutory demand raise a rebuttable presumption of insolvency; bona fide dispute – debtor must particularise and prove reasonable grounds to rebut presumption (Badenhorst rule applies at final stage alongside Plascon‑Evans evidential principles).
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10 August 2023 |
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Director‑General’s s29(2) refusal set aside where decision materially relied on an erroneous factual premise; matter remitted for reconsideration.
Immigration law – s29(1) prohibited persons – s29(2) Director‑General’s discretion to lift prohibition – first‑instance decision not appealable under s8(6); administrative law – irrationality where decision rests on material bad/irrelevant reason; remedy – remittal vs substitution; evidentiary burden on applicant to show 'good cause' and innocence of fraud.
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10 August 2023 |
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Aggregate custodial sentences for discrete theft counts were excessive; wholly suspended sentences substituted, section 302 not triggered.
Criminal law – Sentencing – multiple counts of theft – when offences may be sentenced separately; aggregate sentence proportionality; suspension as mitigation – Section 302 CPA (automatic review) inapplicable where accused had legal representation.
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8 August 2023 |
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Appeal succeeds: daughter lacked proven locus standi and insufficient evidence existed to end curatorship without further neuropsychological assessment.
Mental health/curatorship – Rule 57(14) locus standi – requirement of direct and substantial legal interest; curatorship – discharge requires clear evidence of material change and capacity to manage large funds; court should give weight to curator ad litem and neuropsychological assessments before terminating protections; cultural considerations cannot replace clinical evidence when protecting vulnerable persons.
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7 August 2023 |
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Default judgment set aside where pleadings failed to allege a cause of action against the appellant.
Civil procedure – rescission of default judgment – requirements: reasonable explanation for default and bona fide defence with prospects of success. Pleadings – necessity of a pleaded cause of action against the defendant for contractual liability. Agency/receipt of funds – payment into defendant’s account does not alone create contractual liability absent appropriate pleadings. Appellate review – interference where lower court applied wrong principle of law.
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3 August 2023 |
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Appeal dismissed as moot; applicant’s vehicle lawfully removed for illegal sidewalk parking under traffic regulations.
Traffic regulation interpretation – regulation 320(2) – abandoned versus parked vehicle – whether sub-conditions conjunctive or disjunctive; interpretation principles: text, context, and related provisions; mandamus only for unlawful dispossession; mootness of appeals where practical effect extinguished; discretionary costs in moot matters.
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2 August 2023 |
| July 2023 |
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Readmission refused: applicant failed to identify the character defect and prove genuine reformation.
Readmission of advocate; onus to prove genuine, complete and permanent reformation; applicant must identify and explain character defect causing misconduct; full and frank disclosure required; character references alone are insufficient; role of GCB/constituent Bars under LPA (per Nthai).
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31 July 2023 |
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The applicant charged with a Schedule 5 drug offence failed to satisfy s60(11)(b); bail was properly refused.
Bail — section 60(11)(b) onus where accused charged with Schedule 5 offence — fixed residential address and access to vehicle as indicators of flight risk — strength of State’s case and seriousness of drug offences (mandrax) — community petition and public interest relevant to bail discretion.
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31 July 2023 |
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Reported
An accused’s remedy for incapacity to stand trial lies under ss 77/79 Criminal Procedure Act, not by civil stay despite inordinate prosecutorial delay.
• Criminal procedure – permanent stay of prosecution – grounds: unreasonable delay; accused’s mental/intellectual incapacity; reliance on self‑incriminating evidence.
• Evidence law – s 35(5) Constitution – exclusion of evidence obtained in breach of Bill of Rights is a trial‑court discretion.
• Subsidiarity – where ss 77 and 79 Criminal Procedure Act comprehensively address fitness to stand trial, accused must rely on those statutory procedures rather than a civil constitutional stay.
• Delay – inordinate prosecutorial delay requires proof of material trial‑related prejudice to justify a permanent stay.
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31 July 2023 |
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Municipal report on alternative accommodation was inadequate; eviction postponed pending comprehensive municipal response and official testimony.
Eviction proceedings — adequacy of municipal report under s 4(7) of PIE Act — municipal duty to investigate availability of alternative accommodation and consider occupiers’ vulnerabilities — emergency shelter material insufficient without realistic land/consent or resource explanation — postponement and subpoena of municipal official ordered.
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28 July 2023 |
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A South African court lacked jurisdiction to grant interdictive relief against a respondent domiciled and resident in Portugal regarding funds held abroad.
Jurisdiction – interdicts and mandament van spolie – court lacks jurisdiction to grant interdict against foreign peregrinus for acts performed abroad; Situs of incorporeal movables (bank credit balances) – forum domicilii/forum rei sitae; Divorce proceedings jurisdiction – consent or institution of divorce in local court does not confer jurisdiction on separate prior interdict proceedings; Procedural – Plascon‑Evans approach to disputes of fact on motion.
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28 July 2023 |
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Applicant failed to prove the deceased intended the purported will; s2(3) condonation requires contemporaneous intention and full disclosure.
Wills Act s2(3) – condonation of non‑compliance with formalities; execution by mark (s2(1)(a)(v)) – absence of commissioner not automatically fatal if identification/evidentiary purpose met by other means; requirement to prove contemporaneous intention to make the document a will; heightened duty of full and frank disclosure in s2(3) applications; proof of intention cannot be supplied for the first time in reply or by refusing oral evidence.
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28 July 2023 |
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Anton Piller order confirmed where exclusive licensee showed prima facie copyright/confidentiality infringement and preservation of evidence was justified.
Anton Piller orders; ex parte disclosure; exclusive licensee locus standi under Copyright Act s25; preservation of evidence; scope and execution of search and seizure; interim interdict for copyright and confidential-information claims; expert inspection and prima facie similarity evidence.
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25 July 2023 |
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Applicant’s application to compel discovery under Rules 35(3) and 35(12) dismissed as speculative and unsupported.
Discovery — Uniform Rule 35(3): further discovery not to be used for fishing expeditions; requesting party bears onus to show existence/relevance of undisclosed documents; discovery affidavit prima facie conclusive. Rule 35(12): production only where pleadings/affidavits specifically refer to documents; inferential or probabilistic references insufficient.
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24 July 2023 |
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Validity of non‑compliant will under s2(3) and competence of a witness‑related beneficiary under s4A(2)(a).
Wills Act 7 of 1953 – s 2(1) formalities – attesting witnesses must sign in each other's presence – non‑compliance remedied by s 2(3) if document intended to be will. Wills Act – s 4A(1) disqualification where spouse attests a will; s 4A(2)(a) exception where beneficiary shows no fraud or undue influence. Burden of proof – would‑be beneficiary bears onus to establish absence of fraud/undue influence. Civil procedure – real, genuine and bona fide dispute of fact required to resist factual averments.
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20 July 2023 |
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Reported
A contingent beneficiary has no automatic right to extensive trust/company records absent vesting or specific proof of trustee maladministration.
Trust law – discretionary/contingent beneficiary’s entitlement to information – vesting of rights; Trust deed obligations (clause 8.2) – preparation vs dissemination of financial statements; Section 19 Trust Property Control Act – remedy where trustee fails to perform duty; Allegations of maladministration – need for specificity; Differentiating trustee acts in personal capacity from trustees’ collective acts.
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18 July 2023 |
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Reported
Court dismissed applicants' constitutional challenges to provincial school governance, intervention facilities and evaluation authority.
Education law — Provincial legislature may establish additional types of public schools; provincial provisions (Collaboration and Donor Funded Schools) valid when read subject to SASA; MEC regulation-making powers lawful. Intervention facilities — challenge premature pending Norms and Standards; referral with parental consent not ‘detention’; statutory safeguards required (best interests, right to be heard). School evaluation — provincial evaluation authority (WCSEA) lawful; collective agreements do not trump provincial legislative competence. Conflict of laws — prefer interpretation avoiding conflict (s150); national law prevails only where s146 conditions met. Costs — Biowatch principle applied (each party pays own costs).
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17 July 2023 |
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Municipality rationally required cumulative impact assessment; not bound to follow provincial environmental approvals; review dismissed.
Land‑use planning — municipal discretion in considering desirability — requirement for cumulative Atmospheric Impact Report on odour and flies; PAJA review — rationality, arbitrariness and bias; interplay between municipal planning decisions and provincial environmental approvals — SPLUMA does not oblige municipal abdication; late introduction of new review grounds inadmissible.
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13 July 2023 |
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Reported
A taxed bill may be rescinded where a lay debtor lacked proper formal notice; taxation award and execution set aside.
Taxation of costs – Rule 70(3B) and 70(4)(a) – adequacy of notice; service by email v personal service by Sheriff; taxed allocatur comparable to judgment debt – rescission (setting aside) competent remedy – common‑law rescission requirements (good cause, good faith, bona fide defence) applied – warrant of execution set aside.
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13 July 2023 |
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An accused’s prior s 204 confession or admission is inadmissible against others under ss 219/219A despite Hearsay Act exceptions.
Criminal procedure – admissibility of prior s 204 statements – recanted s 204 statements of witnesses – interplay between s 3(1)(c) Law of Evidence Amendment Act and ss 219/219A Criminal Procedure Act – s 3(2) limits Hearsay Act where other statutory prohibitions apply – Mhlongo/Makhubela/Mabaso bind trial courts; Makhala distinguishable.
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12 July 2023 |
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Reported
Court upheld exigent warrantless searches where reasonable imminent risk existed; informed consent required for lawful waiver of search rights.
Search and seizure — Criminal Procedure Act ss 21–22 — s 22(b) exigent‑circumstances test (warrant would be issued; delay would defeat object) — consent under s 22(a) — waiver of constitutional right must be informed and voluntary — incidental seizure during lawful search — only named officers authorized by warrant may search — s 35(5) exclusionary discretion: severity, deliberate conduct, inevitability and administration‑of‑justice interest.
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12 July 2023 |
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Interim payment certificates are not absolutely final; contractual defences and arbitration can determine enforceability.
Building contract — Interim payment certificates — Whether certificates are absolutely or temporarily final — Contractual adjudication and arbitration clauses — Availability of defences, set-off and counterclaims to actions on interim certificates — Admission of late supplementary affidavit — Effect of pending arbitration on enforcement of payment certificates.
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10 July 2023 |
