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Citation
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Judgment date
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| November 2018 |
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Applicant granted interim interdict: respondent lacked authority to act as judicial manager where original order targeted a mis-cited/non-existent company.
Judicial management – mis-citation of company / non-existent entity – separate legal personality – whether respondent lawfully acts as judicial manager; interdict pendente lite; urgency; non-joinder; material non-disclosure; illegality and void orders.
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8 November 2018 |
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Appeal allowed where trial court misdirected itself and ordered eviction without properly proving a lease.
Civil procedure — appeal against factual findings — trial court’s failure to assess credibility, reliability and probabilities — onus of proof — lease versus sale of immovable property — eviction — misdirection — substitution of judgment on appeal.
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8 November 2018 |
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Court orders termly contribution to children's education and divides matrimonial property, finding the payer's income understated.
Matrimonial property division; custody; contribution to children's educational expenses; maintenance assessment against payer's undisclosed income; support for adult child in tertiary education; valuation and equalisation payments; allocation of vehicles.
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1 November 2018 |
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Conviction set aside where accused’s plea was equivocal and section 272 required entry of a plea of not guilty.
Criminal procedure – Plea of guilty – Equivocal or qualified plea – Section 272 Criminal Procedure and Evidence Act – Where accused’s subsequent statements contradict earlier admissions court must record plea of not guilty – Conviction and sentence set aside on review.
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1 November 2018 |
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Possession and branding of stolen cattle plus accomplice's conviction justified refusal of bail.
Criminal law – Bail – Stock theft – Strength of state case; seriousness of offence; possession and branding of stolen animals; accomplice’s conviction and risk of abscondment.
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1 November 2018 |
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A defective notice of appeal is incurably invalid; the Contractual Penalties Act did not bar eviction under an employee housing scheme.
Civil procedure — Appeal — Notice of appeal — Compliance with Order 31 Rule 2(4)(a),(b) — Prolix/defective notice a nullity — No condonation; Contractual Penalties Act s8 — Inapplicable to employee housing scheme; caveat subscripto; public policy.
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1 November 2018 |
| October 2018 |
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The accused's non-pathological "emotional storm" defence was rejected; convicted of murdering her child and sentenced to seven years.
Criminal law — Murder — Non-pathological criminal incapacity ("emotional storm") — Battered woman syndrome — Intention and voluntariness — Diminished responsibility rejected — Sentencing mitigation considered.
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26 October 2018 |
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Applicants unlawfully despoiled of quarry site; court granted mandamus van spolie restoring possession and awarding costs.
Spoliation (mandamus van spolie) — possession of land — forcible entry and cutting of fence — prospecting licence/administrative letter not a defence to unlawful dispossession — urgent restoration of status quo ante; trespass; costs.
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25 October 2018 |
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Applicants denied bail due to positive identification, ecocash evidence and dishonesty about their whereabouts.
Criminal procedure – Bail – Risk of abscondment – Identification evidence – Use of complainant’s ecocash – Adverse inference from untruthful alibi – Strength of state case.
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25 October 2018 |
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Court allowed condonation, struck out defective pleadings, dismissed special plea and exception, and ordered plead over on merits.
Civil procedure – condonation for late heads of argument; pleadings – striking out portions of a declaration for non-compliance with rule 99; amendment of process requires court order or consent; special plea on legal personality requires evidence; exception inappropriate where vicarious liability and duty of care raise issues of fact and law.
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25 October 2018 |
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Convictions for stock theft set aside where identity and guilt were not proved beyond reasonable doubt.
Criminal law - stock theft - proof beyond reasonable doubt - identity of accused - contradictions in prosecution witnesses - accomplice hostile evidence - caution in identification cases
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22 October 2018 |
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Conviction for theft of trust property set aside where evidence failed to prove trust, intention and excluded other inferences.
Criminal law — Theft of trust property (s 113(2)(a)) — Essential elements: trust, breach, intention — Fraud (misrepresentation) vs theft — Sufficiency of charge (ex facie indictment) — Circumstantial evidence requirements (R v Blom).
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22 October 2018 |
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First appellant’s robbery conviction confirmed; second appellant’s conviction set aside due to unsafe identification evidence.
Criminal law – Armed robbery – eyewitness identification – caution where observation brief and under duress – common purpose liability for accomplices.
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22 October 2018 |
| July 2018 |
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Absolution granted where plaintiff failed to prove arrears and operating costs due to lack of source documents and inconsistent evidence.
Civil procedure – absolution from the instance – prima facie case test; failure to produce source documents for operating costs; variance between pleadings and viva voce evidence; effect of lis pendens on proof of claim.
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5 July 2018 |
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A guilty plea is inadequate where police‑formed reasonable suspicion (an essential element) is not proven; convictions set aside.
Criminal law – Possession of property suspected of being stolen – Acceptance of guilty plea – Essential element of reasonable suspicion formed by police must be proved by evidence – plea alone insufficient – trial de novo ordered.
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5 July 2018 |
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Battered woman’s history acknowledged but self-defence rejected; convicted of murder with constructive intent and sentenced to 18 years.
Criminal law — Murder — Self-defence — Imminence of attack — Battered woman’s syndrome — Dolus eventualis (constructive intent) — Evidence destruction as indicia of foresight of death.
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5 July 2018 |
| May 2018 |
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Plaintiff permitted to re-open case to call HR manager the defendant had declined to call.
Civil procedure – Re-opening case to adduce further evidence after close – Order 19 r437(5) – Factors: explanation for delay, prejudice, materiality – Party claiming exclusive right to a witness.
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31 May 2018 |
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Trial magistrates must verify sentencing records to prevent wrongly recorded imprisonment and ensure accurate community service terms.
Criminal procedure – Sentencing – Inconsistent sentencing entries between charge sheet and community service annexure – Duty of trial magistrates to verify and endorse sentences – Remittal and recall of accused to correct sentencing record.
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24 May 2018 |
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A law firm was vicariously liable for gross negligence that led to default judgment and sale; damages awarded for lost property and fees.
Professional negligence – solicitor’s duty of care and supervision – vicarious liability for professional assistant and instructed advocate – failure to file plea and improper request for further particulars – default judgment and execution – proof and quantification of patrimonial loss.
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18 May 2018 |
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Interim interdict granted halting mining after applicants showed prima facie rights and risk of irreparable harm.
Interdicts – interim relief – prima facie right – irreparable harm – balance of convenience – tribute agreement – membership dispute – mining operations.
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18 May 2018 |
| April 2018 |
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An eviction executed under a valid consent order cannot be reversed; urgent application dismissed for material non-disclosure.
Civil procedure – consent order enforceability – execution and ejectment – lawfulness of sheriff’s execution – restoration of possession after lawful ejectment – prohibition on reversing court-ordered eviction – material non-disclosure in urgent applications; Delco v Old Mutual authority.
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26 April 2018 |
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A non-lawyer's suit for others contravenes the Legal Practitioners Act and the claims were time-barred; special plea upheld.
Civil procedure – notice of intention to bar – Form 9 and Rule 81 compliance; Legal Practitioners Act s9(2) – prohibition on non-lawyers suing for others; Prescription Act – three-year prescription of ordinary debt; competency of pleadings.
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26 April 2018 |
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Plaintiff failed to prove unlawful seizure, impairment of dignity, or unlawful arrest; all claims dismissed with costs.
Delict — unlawful seizure and unlawful arrest — burden of proof on balance of probabilities; Actio iniuriarum — requirement to plead and prove objective impairment of dignity; credibility and conduct of claimant affecting delictual claims; settlement/consensual payment as defence to unlawful dispossession.
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26 April 2018 |
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Trial court erred by imposing sentence above statutory mandatory minimum; sentence reduced to nine years.
Criminal law – Mandatory minimum sentences – Interpretation of statutory minimum for unlawful possession of ivory – Multiple items do not justify a heavier sentence absent statutory provision – Automatic review and substitution of misapplied sentence.
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12 April 2018 |
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Summary judgment granted where respondent’s unsubstantiated ownership claim contradicted prior sworn admission of tenancy and registered title.
Civil procedure — Summary judgment — Bona fide defence required; sworn admission of tenancy binds respondent — Registered title prima facie real right — Right of first refusal/partnership claims insufficient without title or solid evidence — Ejectment ordered.
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10 April 2018 |
| March 2018 |
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Summary dismissal under Order 11 rule 75 refused; issues of condonation and written-variation clause require full trial.
Civil procedure — Order 11 rule 75 — summary dismissal for frivolous and vexatious claims; test is hopelessness/no prima facie case; condonation by conduct versus contractual clause requiring written variations.
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29 March 2018 |
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Executor granted provisional interdict; respondents’ self-help enforcement of a civil order was unlawful and must be executed by the deputy sheriff.
Civil procedure – enforcement of judgments – execution of court orders must be effected by deputy sheriff; private self-help to enforce civil orders unlawful; locus standi of executor recognised where claim lodged against estate; police not empowered to execute civil orders.
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29 March 2018 |
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Failure to explain s163A right to legal representation is a reviewable misdirection warranting bail pending review.
Criminal procedure – Right to legal representation – section 163A – Failure to explain right constitutes misdirection – Ground for review – Bail pending review – Trial de novo.
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29 March 2018 |
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Conviction for sexual offences quashed where trial court misapplied standard of proof and failed to properly assess credibility and defence evidence.
Criminal law – sexual offences – admissibility and reliability of complaint evidence – delay in reporting and inconsistencies (S v Banana); standard of proof – proof beyond reasonable doubt; duty to fairly analyse defence evidence; unsafe conviction appellate intervention.
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29 March 2018 |
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Applicant failed to show new changed circumstances; strong prosecution case and flight risk warranted continued detention.
Criminal procedure — Bail — Changed circumstances under s117(6)(a) — Requirement that new facts be placed before court (s116(c)(ii)) — Strength of State's case and risk of abscondment — Trial date insufficient to justify bail.
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29 March 2018 |
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Plaintiff failed to prove a valid sale; transaction was shown as loans and invalid without estate/Master and Ministry consent.
Contract law — sale versus loan; validity of sale of estate property — Administration of Estates Act sections 41/42 and requirement for Master’s authority; requirement of prior written consent where land registered in Ministry’s name; absolution from instance — Gascoyne prima facie test.
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29 March 2018 |
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An application for a declaratur cannot be used to evade review procedure when challenging administrative decisions.
Administrative law — review disguised as declaratur; failure to give reasons and denial of hearing — review grounds; tribunal composition — need factual foundation; procedural filing irregularity — minor error not fatal absent prejudice.
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22 March 2018 |
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Urgency improperly sought; factual disputes and misjoinder render review unsuitable for urgent relief; application dismissed with costs.
Administrative law – joinder of parties – misjoinder of Minister; Civil procedure – urgency under rule 223A – proper certification and delay; Civil procedure – material disputes of fact precluding resolution on paper; Administrative law – deference to statutory investigatory powers; Public interest – protection of examination integrity.
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22 March 2018 |
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Rescission denied where applicant's affidavit showed presence at service and willful default barred relief under Order 30 Rule 2(1).
Rescission of judgment — Default judgment — Willful default bars rescission (Order 30 Rule 2(1)) — Credibility findings and deference to trial court — Oral alteration of sworn affidavit insufficient.
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22 March 2018 |
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Condonation for late appeal denied where explanations were unsatisfactory and prospects of success were weak.
Civil procedure — Condonation for late noting of appeal — Explanation for delay and delay in seeking condonation — Prospects of success on appeal — Founding affidavit central to motion proceedings — Allegation of forgery cannot be sustained on suspicion; fresh evidence not admissible on appeal.
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22 March 2018 |
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Leave granted to set dismissal application on the unopposed roll; technical agency omission not fatal absent prejudice.
Civil procedure — Unopposed roll — Leave to set matter on unopposed roll; renunciation and assumption of agency — technical non‑compliance — no prejudice, not fatal; want of prosecution — dormancy and finality in litigation.
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22 March 2018 |
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The applicant’s conviction and sentence were set aside because the trial officer convicted without reasons and relied on unproven facts.
Criminal procedure — Review of conviction — Conviction and sentence set aside where trial officer relied on unproven facts; conviction given without reasons and judgment written post-sentence; procedural irregularities by untrained police trial officers.
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22 March 2018 |
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Court reduced an excessive aggregate sentence for youthful offenders, rejecting token suspended months conditional on restitution.
Criminal law – Sentencing – Excessive aggregate sentence – Youthful first offenders – Token suspension on condition of restitution ineffective – Multiple counts: globular or concurrent treatment on sentence – Criminal review and substitution of sentence.
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22 March 2018 |
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The accused was convicted of murder with actual intent for a lethal chest stabbing during a robbery and sentenced to death.
Criminal law – Murder – Distinction between actual (direct) intent and constructive (legal) intent – Stabbing to the chest with a lethal knife amounting to substantial certainty of death – Murder committed in course of robbery – Death sentence imposed.
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21 March 2018 |
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Whether a minister may extend a caretaker commission's 90‑day tenure—court holds he may not and post‑expiry acts are void.
Local government — Urban Councils Act s80 — Caretaker commission tenure limited to ninety days — Peremptory limitation — Acts beyond statutory tenure nullity — Retrospective ministerial affirmation ineffective — Declaratory relief competent in High Court.
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15 March 2018 |
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Provocation reduced a murder charge to culpable homicide; accused sentenced to an effective seven years imprisonment.
Criminal law – murder versus culpable homicide – provocation and loss of self‑control – assessment of dolus versus recklessness – assault with knobkerrie causing fatal head injuries – sentencing considerations.
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14 March 2018 |
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Limited plea accepted; absence of intent downgraded murder to culpable homicide and state-caused 15-year delay warranted a suspended sentence.
Criminal law — culpable homicide v. murder — absence of intent to kill; plea bargaining/limited plea; right to a fair and speedy trial (s.69 Constitution) — excessive prosecutorial delay as mitigation in sentencing; suspended sentence imposed.
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13 March 2018 |
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Accused acquitted by reason of insanity after psychiatric evidence indicated lack of criminal responsibility at time of homicide.
Criminal responsibility — Insanity/disease of the mind — Psychiatric evidence (schizophrenia, substance use) — Acquittal by reason of insanity — s29(2)(a) Mental Health Act; s314 admissions; homicide by axe.
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5 March 2018 |
| February 2018 |
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Applicant’s urgent rescission of its own consent order failed for lack of urgency, non-disclosure and incorrect procedure.
Procedure — Urgent chamber applications — urgency and duty of full disclosure; Consent judgments — rescission procedure (r56) — incompetence of rescission by chamber application under r449/r226(2); Prosecutorial conduct — consent to order then seeking rescission on alleged new information.
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8 February 2018 |
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Application to unwind a wound-up estate and rescind a decades-old divorce dismissed; civil marriage upheld for estate administration.
Administration of Estates Act s68(4) and s68F – validity of civil marriage for estate administration despite prior customary marriage; rescission of long-standing default divorce; wound-up estate cannot be re-registered absent fraud or special circumstances; abuse of process; punitive costs awarded.
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8 February 2018 |
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Whether a single fatal kick amounted to murder or culpable homicide and whether a non-custodial suspended sentence was appropriate.
Criminal law - Culpable homicide v murder; negligent causation of death; reliance on post-mortem evidence; sentencing factors — remorse, first offender status, time on remand, prosecutorial delay; suspended sentence and community service.
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2 February 2018 |
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Order uplifting a caveat was rescinded because it was granted in the absence of parties with a known interest; applicants to be joined.
Civil procedure – Rescission under Rule 449 – Judgment or order erroneously sought or granted in absence of affected party – Non-disclosure of relevant facts (offer letters, occupation, pending eviction) – Joinder of parties – Upliftment of caveat.
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1 February 2018 |
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Applicant's declaratur dismissed—court found a binding contract formed by pro‑forma invoices and payments; applicant ordered to pay costs.
Urgent chamber application; declaratory relief under s14 High Court Act; contract formation by conduct and pro‑forma invoices; consensus ad idem; material disputes of fact resolvable on papers; non‑joinder not fatal; costs awarded to respondent.
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1 February 2018 |
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Interim interdict refused; respondent authorised to disconnect unpaid electricity under SI 155/88.
Electricity supply – disconnection for non-payment – interim interdict – contractual right to supply – SI 155/88 s4(1)(a) – distinction from constitutionally protected right to water.
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1 February 2018 |
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Appellate court set aside custodial sentence for a first-time assault offender for failure to give cogent reasons rejecting community service.
Criminal law – Sentencing – Assault – First offender – Community service as alternative to imprisonment – Trial court must give cogent reasons when rejecting community service – Appellate interference where sentencing discretion misdirected.
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1 February 2018 |