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Citation
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Judgment date
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| November 2007 |
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Bail pending appeal denied where recent-possession evidence undermined appeal prospects and the applicant posed a clear flight risk.
Bail pending appeal — doctrine of recent possession — prospects of success on appeal — burden of positive grounds for bail — flight risk and uncertain identity.
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28 November 2007 |
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High Court corrected a magistrate's warrant to reflect the concurrent sentences and suspension conditions actually pronounced.
Criminal law – Sentencing – Warrant of committal inconsistent with sentence pronounced – High Court review and correction – functus officio – concurrent sentences – suspension conditions – restitution condition.
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28 November 2007 |
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Failure to except to a defective summons estops objection; plaintiff established a prima facie case defeating absolution from the instance.
Civil procedure — Absolution from instance; Prima facie case required; Cause of action — failure to except estops defendant; Disputed 'swop' v loan; Recovery of improvements/ reimbursement
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21 November 2007 |
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Assessment of general damages for assault where medical evidence showed serious injury and loss of amenities.
Delict — assault — assessment of general damages for pain, suffering and loss of amenities — reliance on medical evidence and comparable authorities — consideration of currency decline — quantum awarded despite defendant’s claimed inability to pay.
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21 November 2007 |
| October 2007 |
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Bail pending appeal refused where appeal prospects were negligible and the State’s unexplained non‑opposition was rejected.
Bail pending appeal — considerations of likelihood to abscond and prospects of success; admissibility and assessment of 'trap' evidence; State’s duty (dominus litis) to justify non‑opposition to bail.
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17 October 2007 |
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Urgent interdict dismissed for self-created urgency and failure to pursue existing remedies in parallel proceedings.
Urgent chamber application — self-created urgency and multiplicity of proceedings — Gazetted Land Act prosecution and parallel civil litigation — refusal to grant urgent interdict where applicant failed to pursue existing remedies
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10 October 2007 |
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The accused's fraud sentence confirmed; no misdirection and the accused is bound by counsel's rejection of community service.
Criminal law — Fraud — Sentence — Review of magistrate’s sentence — No misdirection; sentencing discretion not disturbed. Procedure — Effect of counsel’s decisions on accused — refusal of community service through legal representation justified trial court’s rejection of that option.
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10 October 2007 |
| September 2007 |
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Urgent application for access to water and grazing dismissed for self-created delay and failure to establish urgency.
Urgent chamber application — urgency test (Order 32 rules 243, 244) — self-created urgency — legal practitioner's certificate not conclusive — discretion to call parties — interim interdict for access to water and grazing refused
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26 September 2007 |
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Spoliation claim dismissed where police seizure occurred and the police, not the recipient, were not cited to account.
Property — Mandament van spolie — Requirements: peaceful possession and unlawful deprivation — Applicant proved possession but not unlawful deprivation where police seizure involved; police must be cited — Criminal Procedure and Evidence Act s49(a), s58(c) — Spoliation claim dismissed for failure to cite dispossessing authority
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19 September 2007 |
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Court refused to strike out respondent's defence for counsel's non-compliance, postponing matter and ordering counsel to pay wasted costs.
Civil procedure — Pre-trial conference — Failure to attend and non-compliance with pre-trial directions — Strike-out application — Distinction between counsel's default and client's fault — Personal wasted costs against legal practitioner
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19 September 2007 |
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Convictions based on a price-reduction order were quashed where the order postdated the alleged offences; magistrates must verify legal basis before trial.
Criminal law — statutory offences — requirement that enabling order pre-exist alleged conduct — duty of magistrate to verify legal basis before trial — convictions quashed where order postdated offences.
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19 September 2007 |
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Failure to consider a pregnant offender’s status is a sentencing misdirection warranting substitution with fines and suspended imprisonment.
Criminal law – Theft (shoplifting) – Sentencing – Pregnant offender as mitigating factor – Misdirection by sentencing court – Review and substitution of sentence – Fine in default and suspended sentence.
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19 September 2007 |
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Plaintiff's failure to file pre-trial papers and default at conference warranted dismissal; defendant permitted to proceed unopposed.
Civil procedure – pre-trial conference – failure to file pre-trial papers – default by plaintiff and counsel – dismissal for want of prosecution; Counterclaim – leave to set down on unopposed roll; Costs awarded against defaulting litigant
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12 September 2007 |
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Contractual Penalties Act governs instalment land sales; a 14‑day remedy notice was invalid, cancellation void, specific performance denied.
Contractual Penalties Act – instalment sale of land – "land" includes improvements – section 8 notice period minimum 30 days – statutory notice non-waivable – defective notice renders cancellation void ab initio – specific performance refused for incomplete performance
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12 September 2007 |
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Applicants had no legitimate expectation to purchase government pool houses because no clear, unambiguous promise was made.
Administrative law — Legitimate expectation — Requires clear, unambiguous, unqualified representation and objective reasonableness — Mere acknowledgement or promise to consider does not create legitimate expectation — Sale of government rental (pool) houses to sitting tenants
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12 September 2007 |
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Divorce granted with custody to the wife, child maintenance ordered, and detailed division of property and assets.
Family law – divorce – custody of minor children – child maintenance – division of matrimonial property (immovable property, vehicles, movables, livestock) – interim monetary award – costs
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12 September 2007 |
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The respondent's failure to comply with pre-trial procedures and to attend justified striking out the defence and allowing unopposed set down.
Civil procedure – Pre-trial conference – Non-compliance with filing and attendance obligations – Striking out defence – Leave to set down on unopposed roll – Costs reserved.
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12 September 2007 |
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Urgent relief dismissed where disputed directorships and a defective two-of-six resolution defeated the company's authority to sue.
Company law — disputed directorship — locus to sue — validity of corporate resolution authorising litigation — urgency and interlocutory relief — pending related proceedings
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5 September 2007 |
| August 2007 |
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Failure to give reasons and to consider community service amounted to sentencing misdirection requiring substitution of sentence.
Criminal procedure — Sentencing — Duty to give reasons for sentence; sentencing misdirection where non-custodial options (community service) not considered for sentences ≤24 months — Review and substitution of sentence; restitution condition.
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29 August 2007 |
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Applicant granted urgent interim restoration of possession and return of property seized by police pending final determination.
Urgent interim relief – restoration of possession and return of property seized by police – limitation for structures occupied before seizure – relevance of Minister’s offer letter – Karori precedent
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15 August 2007 |
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Bail pending sentence appeal granted where delay in reasons and failure to consider compensation may give prospects of success.
Criminal procedure — Bail pending appeal — Appeal against sentence only — Delay in transcribing reasons — Failure to consider victim compensation as mitigation — Possible misdirection — Flight risk — Conditions of bail.
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15 August 2007 |
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On review, the court substituted a custodial sentence with a wholly suspended sentence after a magistrate failed to consider community service.
Criminal law – sentencing – community service as alternative to short custodial terms – sentencing misdirection on failure to consider community service – review of sentence on automatic review – interplay of medical condition of accused and administrative prison responsibilities.
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8 August 2007 |
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A last-minute, non‑bona fide request for further particulars cannot block a notice to bar; urgent relief to recover the vehicle was dismissed.
Civil procedure – Urgent interim relief – Request for further particulars not a pleading – Timely but sham particulars cannot stave off notice to bar – Prima facie right and balance of convenience required for interim relief – Execution of judgment and inconvenience of reversal
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1 August 2007 |
| July 2007 |
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A breakaway congregation formed after registration cannot claim immovable property registered in the mother church’s name.
Property law; church property and breakaway congregations — acquisition and registration in mother church’s name; prima facie right for interim interdict; adequacy of alternative remedies
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25 July 2007 |
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Condonation refused where applicant was bound by counsel’s settlement and illegality of payment source did not void the sale.
Civil procedure — condonation for late filing — degree of non-compliance, explanation, prospects of success, finality and convenience; Agency — client bound by acts/settlement of instructed attorneys; Contract law — in pari delicto — source of payment from bank error does not taint contract ab initio; Property transfer — refusal to transfer where purchaser repaid bank resolved by consent
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25 July 2007 |
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Failure to record an accused’s replies in a summary plea is a material irregularity warranting quashing of conviction.
Criminal procedure – summary plea under s271(2)(b) – statutory duty under s271(3) to record explanation, elements, acts/omissions and accused's reply; duty of magistrate to keep complete and accurate record; failure to record answers is material irregularity; conviction quashed.
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25 July 2007 |
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Conviction for culpable homicide upheld; negligence assessed as moderate and sentence reduced to fine with a 10‑month driving ban.
Criminal law – Culpable homicide – Degree of negligence (moderate v reckless) – Evidence of skid marks and carriage of victim – Sentence misdirection – Substitution to fine and driving prohibition.
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18 July 2007 |
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Bail refused where serious armed-robbery charges, prior conviction and real risk of absconding outweigh prosecution's concession.
Bail – refusal of bail where offences are serious – prior convictions and risk of absconding – weight of prosecution’s concession – Aitken principle – stringent conditions insufficient where ends of justice may be prejudiced.
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18 July 2007 |
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Delay and self-created urgency defeat an urgent application for an interim interdict; matter dismissed with costs.
Civil procedure – Urgency – requirements for urgent relief – self-created urgency and abuse of court process – interim interdict – alternative remedies and irreparable harm
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11 July 2007 |
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Reviewing judge withheld certificate because sentence was unduly lenient and failed to consider injuries and sentencing precedents.
Criminal law — Assault with intent to do grievous bodily harm — Sentencing — Consideration of medical reports, nature of weapon and injured body part — Principle of consistency in sentencing — Review: withholding of certificate for unduly lenient sentence.
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4 July 2007 |
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Sentences for cross-border dagga trafficking were manifestly lenient; review court withheld its certificate and indicated heavier terms.
Criminal law — Possession of dagga for sale — Cross-border drug trafficking — Sentencing — Manifestly lenient sentences — Need for consistency with precedent.
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4 July 2007 |
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Magistrate’s failure to consider weapon, target and medical report rendered sentence inappropriate; certificate withheld.
Criminal law — Assault — Sentencing — Use of weapon (knobkerrie), blow to head (vulnerable part), medical report indicating serious injury — medical evidence important in sentencing — review court withheld certificate.
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4 July 2007 |
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Unprovoked stabbing causing serious injury warrants custodial sentence; magistrate’s fine was unduly lenient and certificate withheld.
Criminal law – Assault causing serious injury – Unprovoked stabbing with a knife – Sentencing – Imprisonment may be justified even for first offenders – Review and withholding of certificate.
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4 July 2007 |
| June 2007 |
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Non‑commissioned police member has no statutory right to elect magistrate trial; domestic remedies must be exhausted before High Court relief.
Police Act — disciplinary procedures — right to elect trial by magistrate confined to commissioned officers (s32) — default High Court order not binding where not argued — requirement to exhaust domestic remedies (s34) — prerequisites for interim interdict (clear right, well‑grounded apprehension of infringement, balance of convenience)
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27 June 2007 |
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Late application to vary divorce property order refused for failing to meet valuation timetable and altering the order's substance.
Family law — enforcement and implementation of divorce ancillary orders — valuation, sale and equal division of matrimonial property; functus officio and limits on court varying final orders; inherent jurisdiction and exceptions (clarification, clerical error, consequential matters); prejudice from delay in valuations.
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20 June 2007 |
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A trivial fine for a robbery committed by threats was manifestly lenient; a custodial sentence (around three years) was warranted.
Criminal law – Robbery – Sentence – Manifestly lenient fine for robbery involving threats and unrecovered property – Personal mitigation (first offender, bereavement, HIV, dependants) insufficient to avoid custodial sentence – Review court withholds certificate.
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20 June 2007 |
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Summary judgment refused where claim for premiums and stamp duty was unverified and material contractual disputes existed.
Civil procedure – Summary judgment – Rule 64(2) verification and substantiation – Distinction between insurance premiums and surety/bid bonds – Adequacy of pleadings – Bona fide defence versus dilatory defence
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13 June 2007 |
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Failure to join the Minister and to exhaust statutory remedies rendered the urgent chamber application incompetent; dismissed with costs.
Administrative law
Parks and Wildlife Act — Ministerial powers under s60(4) to prohibit hunting; statutory remedy under s60(7)/s58; non-joinder of necessary party (Minister); urgency and procedural form (chamber application v review)
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13 June 2007 |
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Deponent lacked proper authorisation to represent allegedly incapacitated applicant, so rescission application was dismissed with costs.
Civil procedure — rescission application — authority of deponent to represent litigant — requirement to appoint curator ad litem (Order 32 r249) or produce power of attorney — presumption of sanity and onus to prove incapacity — failure to prove authorisation fatal to application
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13 June 2007 |
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Urgent application dismissed for failure to obtain statutory leave, absence of cause of action and unjustified delay.
Companies Act – judicial manager’s authority to litigate; failure to obtain leave/authorization; Urgency – inexcusable delay; Prior judgment binding; No cause of action against occupant/mala fide purchaser not averred
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13 June 2007 |
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An objection to a section 8 land acquisition does not suspend the acquisition; interim relief to prevent resettlement was dismissed.
Land Acquisition Act s8(2) – effect of acquisition orders – objection versus appeal – objection does not suspend operation – statutory interpretation (intentionalism) – no interim stay of acquisition pending Administrative Court objection – prior Supreme Court authority preclusive
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13 June 2007 |
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Summary judgment refused where authenticity of the sale agreement and respondent’s improvement lien raise triable disputes.
Property law – sale agreement – alleged written contract and alleged forgery; Procedure – summary judgment inappropriate where genuine disputes of fact exist; Securing payment – claim of improvement lien for useful enhancements to property
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13 June 2007 |
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An urgent interdict to stay forfeiture is dismissed where no review application has been filed or attached to the urgent papers.
Administrative law – Forfeiture of goods – Urgent interdict/stay of execution – Requirement that review application be instituted and attached to urgent chamber application – Intention to file review insufficient
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6 June 2007 |
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Summary judgment refused where disputed statutory tenancy under s22(2) Rent Regulations presents arguable factual and legal issues.
Procedure — Summary judgment — Exceptional remedy available only where defence clearly unarguable; Commercial premises — Statutory tenancy under s22(2) Commercial Premises (Rent) Regulations 1983 — huur gaat voor koop — disputed rents, timing of payments and lawful variation.
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6 June 2007 |
| May 2007 |
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Provisional court orders must themselves be served on respondents; service of the founding papers alone is insufficient to make them final.
Civil procedure – provisional/interim orders – necessity of serving the court-granted provisional order on respondents before it can be treated as final – service of founding papers alone insufficient – respondents’ right to oppose preserved
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30 May 2007 |
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A donation inter matrimonium may be revoked after transfer for gross ingratitude, including adulterous conduct and related misconduct.
Donation inter matrimonium – revocation after delivery – simple versus remuneratory donation – gross ingratitude – adultery and financial assistance to third party – remedy: transfer and enforcement.
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30 May 2007 |
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Default judgment rescinded where agent lacked locus standi and procedural irregularities rendered the judgment erroneously entered.
Civil procedure — Rescission under Order 49 Rule 449(1)(a) — judgment erroneously entered in absence — locus standi of agent — validity of power of attorney — improper citation — default judgment rescinded.
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30 May 2007 |
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Application to set aside private‑treaty sale in execution dismissed for non‑compliance with Rule 359 and bona fide purchaser protection.
Execution sales – Order 40 Rules 354, 358(2) and 359(2) – sheriff’s discretion to refuse confirmation and sell by private treaty – time‑limit for objections – protection of bona fide purchaser – reluctance to set aside sales in execution
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16 May 2007 |
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Urgent application challenging university governance dismissed for lack of urgency, unclear locus standi, and procedural defects.
Urgent applications — urgency test and certificate of urgency; locus standi — requirement to plead capacity; interim relief versus substantive relief — procedural propriety; service and procedural compliance in chamber applications; university governance — alleged charter breaches
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9 May 2007 |
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An urgent eviction application was dismissed for procedural defects and failure to establish urgency; ordinary costs awarded.
Civil procedure — Urgent chamber application — Use of correct forms (Rule 241/Form 29B; Rule 247/Form 29C) — Certificate of urgency must demonstrate why matter is urgent — Eviction — Procedural irregularity — Costs on ordinary scale
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9 May 2007 |