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Citation
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Judgment date
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| January 2007 |
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Applicant cannot obtain court registration of a cession while the same claim is pending before the Master; must exhaust estate remedies.
Property registration – deed of cession – consent of local authority – administration of deceased estate – remedies before the Master of the High Court – prohibition on parallel proceedings – interim relief to preserve status quo
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31 January 2007 |
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Applicant's forged agreement and duress-induced acknowledgment failed to justify cancellation; application dismissed with attorney-and-client costs.
Sale agreement – alleged forgery of agreement of sale – purchase price dispute – acknowledgment of debt – duress – validity of cancellation and eviction – punitive attorney-and-client costs
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31 January 2007 |
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Agent’s material misrepresentation in a sale-by-sample transaction rendered the principal liable; purchaser entitled to delivery or alternative damages.
Contract law – sale by sample – goods must correspond to sample shown; Misrepresentation – material and induced contract – principal liable for agent’s fraud; Remedies – specific delivery or alternative damages; Evidence – failure to produce contemporaneous order records affects credibility
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31 January 2007 |
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Applicant entitled to transfer and enforcement after full payment; respondent’s refusal and cancellation invalid, punitive costs warranted.
Sale of immovable property – transfer after full payment – validity of unilateral cancellation after acceptance of purchase price – specific performance – costs, punitive award for vexatious conduct.
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31 January 2007 |
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Whether fatal assaults constituted murder or culpable homicide and admissibility of deceased’s res gestae statements.
Criminal law – Culpable homicide v. murder – causation and intent; Hearsay – res gestae and s253 admissibility of deceased’s statements; Witness credibility and late/rehearsed evidence; Acquittal of alleged bystander where participation unproven.
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31 January 2007 |
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A ministerial re-registration requirement for insurers and brokers was held to be within the delegated legislative power and intra vires.
Administrative law – Delegated legislation – Regulation-making power under s89 of the Insurance Act – Re-registration requirement – Ultra vires challenge – Public interest justification.
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31 January 2007 |
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Urgent execution pending appeal dismissed for lack of urgency and applicant's absence as a joined party; appeal notice treated as nullity.
Civil procedure — Urgent chamber application; execution pending appeal — urgency must be demonstrated by prompt action — delay defeats urgency
Locus standi and joinder — non-parties must be joined before seeking execution
Default judgment — appeal may be inappropriate; remedy to purge default. Notice of appeal may be nullity if proper procedural route not followed
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24 January 2007 |
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An effectively review application was dismissed for procedural non-compliance, non-joinder and lack of authority to represent the company.
Administrative law – Review of Master's directives – Non-joinder of interested parties – Failure to comply with High Court Rules (Order 33/Rule 258; Rule 257) – Improper procedure (chamber vs court) – Locus standi: lack of company resolution – Costs on attorney-and-client scale
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24 January 2007 |
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Court grants divorce for irretrievable breakdown despite respondent’s wishes, orders custody, maintenance and equal division of home proceeds.
Family law – Divorce – Irretrievable breakdown – Objective and subjective inquiries – Prolonged separation and loss of consortium – Isolated sexual incident during separation not necessarily precluding divorce – Exercise of discretion on division of matrimonial assets where respondent refuses to participate – Custody and maintenance of minor child
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24 January 2007 |
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Court condoned counsel’s procedural errors, allowed supplementary affidavits and uplifted the bar, ordering respondents to pay costs.
Civil procedure – Condonation of procedural irregularities – Leave to file supplementary affidavits – Authority to depose and power of attorney – Prejudice and costs – Inability to visit litigants for counsel’s errors
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24 January 2007 |
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Bail pending appeal denied where guilt undisputed, appeal unlikely to succeed and risk of absconding present.
Criminal procedure – bail pending appeal – conviction and appeal against sentence only – principles for post-conviction bail – risk of absconding – aggravating factors (premeditation, travel, large-scale theft) – prospects of success on appeal.
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24 January 2007 |
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Section 227 permits staying a winding-up where shareholding disputes exist; counsel must act only on client instructions, and costs followed applicant.
Companies Act s227 — Court’s power to stay or set aside winding-up after order made — Alternative to rescission; Practitioner acting without client instructions — improper conduct; Shareholding disputes — stay of liquidation pending rectification proceedings; Costs against dilatory applicant
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17 January 2007 |
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Court dismissed rescission of a default judgment, finding no reasonable explanation or prima facie defence under instalment-sale law.
Civil procedure – Rescission of default judgment – Functus officio after execution of order – Instalment sale agreements – Contractual Penalties Act s7 and s8 – Notice to rectify and mora – Waiver by acceptance of late payments
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10 January 2007 |
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Founding affidavits must be sworn by a deponent with personal knowledge; practitioner-sworn, unauthorised affidavits are expunged and application dismissed.
Civil procedure – founding affidavit – deponent’s personal knowledge required – legal practitioner swearing affidavit on behalf of client – power of attorney insufficient to authorise institution of proceedings – expungement of improper affidavit – dismissal and costs on attorney-and-client scale
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10 January 2007 |
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An applicant’s urgent application unsupported by explanation for delay or irreparable harm is not urgent and is dismissed with costs.
Procedure — Urgent chamber application — requirement that certificate of urgency provide honest practitioner explanation of urgency and irreparable harm — unexplained delay defeats urgency — costs on legal practitioner and client scale
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10 January 2007 |
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Medical evidence of severe head injuries must inform charging and conviction; failure to apply such evidence warrants withholding of review certificate.
Criminal review — Assault with intent to do grievous bodily harm — Serious head injuries (fractured skull base, CSF otorrhea) — Importance of medical reports before conviction and charging — Prosecutor and magistrate must apply medical evidence — Withholding of certificate where proceedings risk injustice.
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10 January 2007 |
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Bail pending appeal refused for attempted murder due to lack of prospects of success and risk of absconding.
Bail pending appeal — attempted murder — seriousness of offence and heavy sentence — absence of reasonable prospects of success on appeal — prior absconding — presumption of innocence not applicable — onus on applicant to show grounds for bail.
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10 January 2007 |
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Rescission denied where alleged later sale post-registration lacked merit; registration and first purchaser's rights justified eviction.
Civil procedure — rescission of default judgment: requirement of reasonable explanation and bona fide defence; Deeds registration — substantive proof of ownership; double sale — first purchaser's rights prevail; eviction for lack of legal title.
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10 January 2007 |