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Citation
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Judgment date
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| February 2004 |
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Appellant failed to show a bona fide right of occupation or jurisdictional bar; approved cession vested ejectment rights and appeal dismissed.
Ejectment — jurisdiction of magistrates' court — bona fide dispute as to right of occupation — 'clear value to the occupier' threshold — effect of cession and municipal approval — amendment of pleadings in magistrates' court — leave to execute pending appeal.
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24 February 2004 |
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Urgent eviction application dismissed because contractual ambiguity and disputes of fact required ordinary litigation, not urgency.
Urgency — eviction proceedings — lease interpretation — conflict between Heads of Agreement and subsequent Lease Agreement — ‘entire agreement’ clause — disputes of fact precluding urgent relief.
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24 February 2004 |
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Sale in execution set aside where a joint‑owner’s share was wrongfully attached and sold without required attachment procedures.
Civil procedure — Sale in execution — Attachment of immovable property — Joint ownership — Messenger’s duties under Magistrate’s Court Rules (Order 26) — Requirement to obtain title documents and ascertain prior claims — Bona fide purchaser cannot cure a void attachment — Sale set aside as nullity.
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24 February 2004 |
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A statutory suspension under s54(2) permits an interdict to stop a mayor performing mayoral functions; court refused to review suspension absent proper challenge.
Administrative law; Urban Councils Act s54(2) — suspension of mayor; statutory prohibition on performing mayoral functions during suspension; interdictory relief — requirements (clear right, injury, absence of alternate remedy); court will not adjudicate lawfulness of suspension where not pleaded.
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24 February 2004 |
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Second purchaser had knowledge of an earlier sale; second sale cancelled and title ceded to the first purchaser.
Property law – double sale of immovable property – bona fide purchaser for value without notice – constructive/actual knowledge – application of Crundell Brothers v Lazarus test – cancellation of second sale and cession to first purchaser.
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24 February 2004 |
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Conviction for exhibiting 'similar' sculptures quashed: copyright protects expression not ideas, and prosecution failed to prove reproduction or accused's knowledge.
Copyright — protection of expression not ideas — requirement of reproduction of existing material — s 27(1)(e) offence elements: subsistence of copyright, exhibition by way of trade, knowledge of infringing nature — insufficiency of inscriptions/possession to prove infringement or knowledge — appellate intervention for misdirection.
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24 February 2004 |
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Corruption conviction of a police officer upheld where accused failed to rebut prosecution evidence; appeal dismissed.
Prevention of Corruption Act – solicitation/acceptance of bribe by police officer – accomplice evidence – onus on accused in corruption charge to disprove offence on balance of probabilities – appellate review of credibility findings.
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24 February 2004 |
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Applicant's appeal against rape convictions and sentence dismissed due to reliable identification and corroborative medical evidence.
Criminal appeal – identification evidence – rape of a child – reliability of identification where complainant knew accused – medical corroboration of penetration – sentence appropriateness.
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24 February 2004 |
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Bail refused where prior evasion and possession of allegedly stolen vehicle created a real risk of absconding.
Criminal procedure – Bail – Likelihood to abscond – Possession of allegedly stolen vehicle and prior evasion of police as indicators of flight risk – Applicant’s willingness to abide conditions insufficient where prior conduct shows deliberate evasion.
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24 February 2004 |
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Appellate court reduced sentence for fraud due to mitigation but upheld full restitution absent proof of a co-offender.
Criminal law — Sentencing for fraud — Mitigation (first offender, guilty plea, assistance in recovery) — Reduction and suspension of sentence — Restitution — Allegation of co-offender; ipse dixit insufficient to avoid full restitution.
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24 February 2004 |
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Condonation for late heads refused and substantive claim dismissed because applicant failed to rebut price-adjustment clause and offered inadequate explanation.
Civil procedure – condonation for non-compliance – late filing of heads of argument – factors: degree of non-compliance, explanation, prospects of success – failure to file answering affidavit – evidential consequence of uncontroverted allegations – contractual price-adjustment clause on reverse of quotation – refusal of condonation and dismissal of substantive application.
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24 February 2004 |
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Court granted leave to execute a consent eviction order pending appeal due to risk of irreparable loss and alleged illegality.
Civil procedure – leave to execute judgment pending appeal – factors: irreparable harm, prospects of success on appeal, prevention of illegality, consent judgment – eviction and restoration of possession.
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17 February 2004 |
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Court varied matrimonial property division to equal shares under parties' agreement despite a defectively framed notice of appeal.
Family law – divorce – division of matrimonial property – notice of appeal requirements (Order 31, Rule 2(4) Magistrate’s Court Rules) – defective notice limits appellate scrutiny – parties’ agreement to equal division accepted – order varied to 50/50.
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17 February 2004 |
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Applicant failed to prove a prima facie right to interim relief; absence of evidence of acquiring authority approval fatal to application.
Land law – Interdict – prima facie right required for interim relief – Land Acquisition Act s9 – effect of section 8 orders – urgency and procedural compliance – necessity of proving acquiring authority’s approval/authority to remain in occupation.
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17 February 2004 |
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Application dismissed where pledge amounted to pactum commissorium and applicant sold pledged goods without accounting.
Contract law — pledge — pactum commissorium — illegality and unenforceability; contractual penalties — Contractual Penalties Act s4 — court may reduce or refuse oppressive penalties; in de plume rule (interest cannot exceed capital); summary sale without notice and failure to account for proceeds.
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17 February 2004 |
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Court reduced an excessive custodial sentence for planned employee theft, considering restitution paid and complainant's wish against imprisonment.
Criminal law — Sentence — Whether custodial sentence excessive; restitution quantification; premeditation in employee theft; weight of complainant's preference against imprisonment.
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17 February 2004 |
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An appeal does not revive a discharged provisional order; spoliation justified interim restoration of possession pending appeal.
Spoliation (mandamus van spolie) — interim relief to restore possession; interim/provisional orders — discharge and effect of noting an appeal; self-help prohibited; locus standi of suspended employees to seek spoliation.
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17 February 2004 |
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Regulations under Presidential Powers validly amended s32, removing bail jurisdiction for specified offences; bail application dismissed.
Criminal procedure – Bail – Remand under s32 Criminal Procedure and Evidence Act as amended – Presidential Powers (Temporary Measures) Regulations validly amending Acts – Peremptory restriction on grant of bail for offences in Third Schedule – Prevail over inconsistent law.
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14 February 2004 |
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An uncondoned, defective appeal does not automatically suspend enforcement of the trial court’s orders.
Civil procedure – effect of noting an appeal – automatic stay of execution is a rule of practice subject to court discretion; defective or out-of-time appeals do not suspend execution. Property/land – occupation after eviction and where statutory acquisition declared invalid – no lawful basis for occupation. Contempt and enforcement – trial court may order its judgments to have effect despite appeal.
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10 February 2004 |
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Applicant’s gross negligence and abandonment of its rescission application justified refusal to rescind default judgment.
Civil procedure – Rescission of default judgment – Rule 43/63 test – reasonable explanation and bona fide defence; gross negligence/wilful default; failure to prosecute application; costs awarded.
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10 February 2004 |
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Whether the plaintiff’s claim for lease repair costs constitutes a liquidated demand permitting default judgment.
Default judgment; liquidated demand; conditional liability under lease; contingent event; proof of quantum; Order 9 r57/r59/r60; unopposed roll.
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10 February 2004 |
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Whether the seller validly cancelled a sale agreement where the notice failed the contractual cure requirement and the buyer had performed deposit obligations.
Contract law — Agreement of Sale; validity of notice of cancellation — contractual cure period (clause 11, 60 days); performance by conduct (vehicle in lieu of deposit); role of estate agent in receipt/disbursement of payments; interpretation of instalment frequency (annual vs monthly); declaration that purported cancellation void.
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10 February 2004 |
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Conviction set aside where identification was unsafe due to trauma and inadequate proof of identification circumstances.
Criminal law — Identification evidence — Caution in reliance on single-witness identification — Surrounding circumstances must exclude risk of mistaken identity; sincerity insufficient.
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10 February 2004 |
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Magistrate should have recused herself; revocation of the applicant’s bail under s126 was unlawful as no new facts existed.
Criminal procedure — Bail — Recusal for reasonable apprehension of bias where judicial officer was questioned by police — s126 Criminal Procedure & Evidence Act — requirement of 'facts which were not before the magistrate who granted bail' — invocation of s126 only where genuinely new facts exist — gross irregularity and review — revocation of bail nullity.
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3 February 2004 |
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Regulations purporting to amend a telecom licence without statutorily required notice and hearing are invalid.
Administrative law – statutory instruments – amendment of existing licences – mandatory compliance with statutory procedure (s42 Postal and Telecommunications Act; reg 11) – audi alteram partem – invalidity of regulations to extent they purport to amend licences.
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2 February 2004 |