|
Citation
|
Judgment date
|
| December 2004 |
|
|
A magistrate may not impose fines exceeding section 271(2)(a) limits when conducting guilty-plea summary trials; use s271(2)(b) for non-minor offences.
Criminal procedure — summary guilty-plea procedure s271(2)(a) v s271(2)(b) — competence of fines — substitution of sentence on review — factors guiding use of s271(2)(a).
|
29 December 2004 |
|
Eviction application dismissed: not urgent and improperly brought by motion where verbal lease raised disputed facts.
Eviction — urgency — requirements for urgent chamber applications; Eviction procedure — action vs motion where verbal lease and disputes of fact exist; Interim relief identical to final relief — impermissible and defeats respondent's right to be heard
|
15 December 2004 |
|
An innocent third-party purchaser with valid transfer is entitled to eviction of a former occupier who failed to challenge prior ejectment or the sale.
Sale and transfer of immovable property — innocent third-party purchaser — transfer in good faith — prior ejectment order — obedience to court orders — eviction authorised — costs on attorney-and-client scale
|
15 December 2004 |
|
Unexplained delay and self-created urgency defeated the applicant's urgent application; it was dismissed with costs.
Civil procedure — Urgent applications — Test for urgency; delay and need for explanation; self-created urgency; monetary loss remediable by damages insufficient.
|
15 December 2004 |
|
Urgent relief dismissed: no demonstrated urgency for interdict against letting or collecting rentals; substantive contractual issues deferred.
Civil procedure – urgent chamber application – urgency must be established; certificate of urgency requires application of mind; loss of rentals not necessarily irreparable; contractual dispute over option price escalation and applicability of in duplum rule left undecided.
|
15 December 2004 |
|
Bail pending appeal refused where sentence likely only reduced and risk of abscondment would hinder administration of justice.
Bail pending appeal – governing factors: prospects of success and risk of abscondment – likely reduction of custodial sentence insufficient to justify bail – grant refused to prevent hindrance of administration of justice.
|
15 December 2004 |
|
Conviction for unlawful export upheld; sentence and forfeiture set aside for failure to inquire into mandatory "special reasons."
Exchange Control Act – unlawful export of goods without Reserve Bank authority – mandatory minimum sentence under s5(4) – obligation to inquire into "special reasons" – forfeiture under s7 – requirement to afford accused opportunity to make submissions.
|
15 December 2004 |
|
Reduction of charges and delay did not justify bail; risk of abscondment and witness interference remained.
Bail pending trial – changed circumstances – reduction of charges and delay – whether reduction likely to produce non-custodial sentence – onus on applicant to prove attendance – risk of abscondment and witness interference.
|
15 December 2004 |
|
Magistrate misapplied s271(2)(a), exceeded sentencing jurisdiction and failed to hear mitigation; convictions confirmed, sentences amended.
Criminal procedure – sentencing procedure under s271(2)(a) vs s271(2)(b) – jurisdictional limit on fines – misapplication of summary procedure – duty to hear mitigation before sentence.
|
15 December 2004 |
|
Applicants succeed on procedural default after respondent’s counsel failed to attend opposed hearing; substantive issues not decided.
Procedural law – counsel’s duty to attend hearings – absence without lawful excuse – procedural default – declaratory relief – fines paid under duress – costs awarded.
|
15 December 2004 |
|
Section 89(6) gives the Labour Court exclusive first-instance jurisdiction; the High Court dismissed the application for lack of jurisdiction.
Labour law — Jurisdiction — Section 89(6) Labour Relations Act grants exclusive first-instance jurisdiction to the Labour Court; Labour Court has review powers under section 89(2)(a)(iii) — disciplinary proceedings — applicability of employer's Code of Conduct to managerial employees (not decided)
|
8 December 2004 |
|
Court refused postponement for alleged ill-health, entered judgment for plaintiffs, and awarded punitive costs for defendants' delaying conduct.
Civil procedure — postponement — illness — fitness to attend court — abuse of process by deliberate delay — punitive costs; declaration of necessary witnesses and allocation of witness-report costs
|
8 December 2004 |
|
Applicant failed to show exceptional circumstances warranting leave to sue curator or preferential payment of frozen bank deposits.
Banking Act s53–54 — curatorship — stay of proceedings and leave to sue — consideration of merits in leave application — leave refused where no strong arguable case or exceptional circumstances; depositor risk and insolvency; court will not order piecemeal payment while curator conducts holistic assessment
|
8 December 2004 |
|
Applicant failed to prove entitlement to an interlocutory interdict freezing the respondent's mining assets and funds.
Interdict pendente lite; requirements — prima facie right, injury or apprehended infringement, absence of alternative remedy, balance of convenience; material disputes of fact on affidavits; misrepresentation in founding affidavit; nominee signatory to joint account as alternative remedy
|
8 December 2004 |
|
Short, reasonable delay with tendered wasted costs can justify removal of a bar for late opposition.
Civil procedure – Default/bar for failure to file opposing papers – Order 12 Rule 83(b) discretion to allow appearance – Rule 84(2) oral application for removal of bar – Good cause required – Tender of wasted costs to address prejudice.
|
8 December 2004 |
|
The applicant's unreasonable delay defeated urgency; the urgent application was dismissed with costs.
Civil procedure — Urgent applications — delay and inaction by applicant — applicant as author of urgency — urgency not established where applicant unreasonably delays; Judicial management — writ of execution against entity under judicial management; Registration of labour tribunal determination.
|
8 December 2004 |
|
Appellate court upheld refusal to allocate retiree's lump sum for child maintenance, finding no misexercise of discretion.
Maintenance law – application for portion of retiree's lump-sum terminal benefits – discretion of Maintenance Court – post-retirement employment and ability to pay – appellate review of discretionary factual findings.
|
8 December 2004 |
|
Ambiguous award of matrimonial assets resolved; applicant given movable property and 35% of house proceeds.
Family law – division of matrimonial property – clarity of orders concerning movable property – repossession to defeat claim – recognition of indirect/intangible contributions – just and equitable share of matrimonial home (35%).
|
8 December 2004 |
|
Appellate court remitted matter for retrial where trial court failed to make credibility findings and assess probabilities.
Civil procedure – appeal – inadequacy of trial judgment – failure to make credibility findings and analyse probabilities – impossibility of effective appellate review – remittal for trial de novo before a different magistrate.
|
8 December 2004 |
|
Rape conviction on one count confirmed; other reduced to attempted rape due to insufficient proof of penetration.
Criminal law – Rape – requirement to prove penetration – attempted rape where penetration not established – credibility of child complainant – use of circumstantial and medical evidence to infer penetration – sentence substitution.
|
8 December 2004 |
|
Convictions confirmed; indecent‑assault sentence against a 15‑year‑old held manifestly too lenient and uncertified by the court.
Criminal law — Indecent assault against a juvenile — Sentencing — Whether sentence is unduly lenient — Review power — Court declines to certify a nine‑month term; suggests 3–5 years effective imprisonment.
|
8 December 2004 |
|
Unsworn, unchallenged victim allegations of prior misconduct are prejudicial at sentencing and must be given under oath and open to challenge.
Criminal law — Sentencing — Admission of victim’s unsworn allegations about prior unprosecuted misconduct as aggravation — Right to cross‑examine and requirement for such evidence to be given under oath; sentencing misdirection and substitution on review; consideration of community service.
|
8 December 2004 |
|
A wholly suspended 12-month sentence with community service for theft of a bull was unduly lenient; certificate withheld.
Criminal law – Stock theft – Sentence – Whether a wholly suspended sentence incorporating community service is unduly lenient for theft of one head of cattle – Established guidance recommends not less than three years' imprisonment absent special mitigation – Recovery of property may be fortuitous and not mitigating.
|
8 December 2004 |
|
Provisional order to seize a vehicle discharged where respondents’ uncontradicted affidavit undermined the interdict and urgency.
Civil procedure — Urgent provisional/interim relief — Ex parte order sought to be confirmed — Opposing affidavit alleging valid sale and transfer of motor vehicle — Failure of applicant to file answering affidavit — Uncontradicted material facts undermining interdict — Self-induced or non-established urgency — Provisional order discharged with costs.
|
8 December 2004 |
|
Agreements to change ownership without a statutory subdivision permit are void; lower courts must follow Supreme Court precedent.
Town and planning law – Regional Town and Country Planning Act s39(1)/s40 – agreements for change of ownership or consolidation without statutory permit void – X‑Trend‑A‑House binding precedent – stare decisis – relief for specific performance/compelled transfer inappropriate where statute prohibits the agreement
|
1 December 2004 |
|
Applicant entitled to specific performance after matching an offer and respondents' mala fide conduct frustrated the sale.
Property law – right of first refusal – matching competing offer – entitlement to specific performance; Vendors/executors – mala fide conduct in sale process; Specific performance preferable where enforceable and damages inadequate; Costs – attorney-and-client scale for dishonest conduct; Minor misdescription of party condoned.
|
1 December 2004 |
|
A court may not impose two separate sentences for one offence; suspension must be of part or whole of a single sentence.
Criminal procedure — Suspension of sentence — Section 358(2) Criminal Procedure and Evidence Act — Sentence for an offence is single and may be wholly or partly suspended — Court may not impose two separate sentences for one offence — Community service as condition of suspension.
|
1 December 2004 |