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Citation
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Judgment date
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| May 2004 |
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Applicant granted bail; bare interference allegations insufficient and abscondment risk must be weighed against case strength.
Bail — s116(7) Criminal Procedure and Evidence Act — refusal requires likelihood to abscond, interfere with evidence, commit offence or other good cause — bare allegations of interference insufficient — risk of abscondment assessed by nature and strength of State’s case and accused’s means abroad — exchange control contraventions; benefit of doubt.
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31 May 2004 |
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Court imposed a partly suspended custodial sentence for sexual intercourse with a six-year-old, balancing aggravation and mitigation.
Sexual offences — sentencing for child sexual abuse — aggravating factors: victim age, penetrative intercourse, physical injury — mitigating factors: guilty plea, youth, single incident — legislative purpose and international child-rights obligations.
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31 May 2004 |
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Non-joinder of an interested purchaser does not, by itself, make a judgment 'erroneously granted' under r449; rescission refused.
Civil procedure – Rule 449(1) rescission – 'Erroneously sought or granted' judgments – Scope limited to errors by the court; non-joinder/misjoinder not per se grounds for rescission – Default judgment and transfer upheld.
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25 May 2004 |
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Owner under hire‑purchase may obtain interim vindicatory relief and judicial attachment against third‑party possessors.
Property law — hire‑purchase/lease retaining ownership — vindicatory relief against third parties in possession; interim interdict and judicial attachment; spoliation; inapplicability of later‑gazetted acquisition regulations.
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19 May 2004 |
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Joinder of employer and registrar granted where counterclaim and registration relief arise from the same transaction and avoid multiplicity.
Civil procedure – Joinder (r.85) – Common question of law or fact – Same transaction requirement – Avoidance of multiplicity – Compelling registrar to effect registration.
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19 May 2004 |
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A share-cancellation without statutory procedure and court confirmation is invalid; an unexercised option allowed the lawful sale to the purchaser.
Company law – reduction of share capital requires statutory procedure and court confirmation; Options – must be exercised within time and manner or lapse; Sale to third party valid where option has lapsed; Directors’ duty – board responsible for company management; Alleged agent fraud insufficient to set aside completed sale on affidavits.
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18 May 2004 |
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Secondee entitled to local and offshore bonuses; employer’s discretion to revert job grade on return upheld.
Employment law – secondment and international assignment – bonus entitlements (local currency and offshore) – interpretation of assignment letters and ‘terms and conditions’ – employer discretion on grade reversion – admissibility of HR affidavit.
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18 May 2004 |
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Reduced repatriation exposure diminished abscondment risk; bail granted with stringent conditions to secure trial attendance.
Criminal procedure – Bail – assessment of risk of abscondment in light of reduced repatriation liability under Exchange Control Act; admissibility of default-judgment affidavit at bail stage; exclusion of uncharged/unsubstantiated allegations from bail assessment; imposition of stringent conditions for wealthy accused with foreign contacts.
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18 May 2004 |
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A s12 inquiry is required before imposing community service; the four‑week completion period was amended to eight weeks.
Community service sentencing — statutory inquiry under s12 required — factors for suitability (abode, family, employment, offender status, age, health) — review court may amend inadequate timeframe (4 to 8 weeks).
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18 May 2004 |
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Convictions quashed where allegedly defamatory article concerned an unascertainable group and corporate representative was improperly cited.
Criminal defamation — class/group defamation — requirement of reference to an ascertainable person — liability of corporate representative only where corporate body charged — editorial responsibility and mens rea for publication.
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18 May 2004 |
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Attachment of the applicant’s property did not automatically create urgency; self-created urgency for urgent interdict was refused.
Civil procedure – Urgent chamber application – Attachment and execution – Self-created urgency – Requirement to show real irreparable prejudice – Rescission of default judgment – Bona fides demonstrated by filing rescission or offering payment.
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11 May 2004 |
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Defendant breached crane-hire contract; plaintiff proved damages; third party not liable as its contract covered off-loading only.
Contract law – breach for failure to supply contracted crane capacity; evidence – admissibility and weight of expert engineer’s report under Civil Evidence Act; damages – proof and computation of loss of profit and reduced machinery life; third-party procedure – scope of third-party contract (off-loading only) and limitation on indemnity; costs order against defendant.
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11 May 2004 |
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The respondent employer was vicariously liable for its driver despite a slight route deviation; insurer's ratification bound the respondent.
Vicarious liability — Employer liable for employee's negligent driving — Deviation/frolic test (Feldman v Mall) — Ratification of insurer's acceptance of liability — Quantum of damages proven.
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11 May 2004 |
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A clear resignation precludes later claiming a retrenchment severance; applicant bore onus to prove exercise of option on motion papers.
Labour law – retrenchment v resignation – severance pay entitlement – onus in motion proceedings – dispute of fact on papers – resignation effective prior to acceptance.
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11 May 2004 |
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Whether a respondent barred for failing to file heads may be deprived of notice when an applicant sets an opposed matter on the unopposed roll.
Civil procedure – High Court Rules – r 238(1) and (2)(b) – automatic bar for failure to file heads of argument – effect of bar on right of audience – setting down opposed matters on unopposed roll (r 223) – notice and procedural fairness.
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11 May 2004 |
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Minister acted ultra vires in closing a private school; PTA had standing and court declared closure null and void.
Education Act – non-governmental schools – Minister lacks power to close schools; enforcement by prosecution not closure – right to school education – PTA standing – ultra vires administrative action – punitive costs – order operative despite appeal.
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10 May 2004 |
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Presumption of innocence favors liberty; where the State’s evidence outweighs the accused’s, bail may be refused.
Criminal procedure — Bail — Section 116(7) CPEA — Onus — Presumption of innocence — Risk of abscondment — Exchange Control offences — Balancing State case and accused's assurances.
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10 May 2004 |
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Whether sentencing without a Registrar’s s90 certificate is lawful and requires contemporaneous reasons; s66(4) not applicable to unlicensed drivers.
Road Traffic Act (s90) — Registrar’s certificate of previous motor-vehicle convictions — Proviso permits sentencing without certificate if interests of justice satisfied — mandatory requirement to record contemporaneous reasons — procedural irregularity but no prejudice; s66(4) endorsement/notification inapplicable to unlicensed driver.
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9 May 2004 |
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Res ipsa loquitur applied to a tyre-burst omnibus accident; operator held vicariously liable and substantial damages awarded.
Delict — Motor-vehicle accident — Res ipsa loquitur and burden of proof after mechanical failure — Tyre burst insufficient to rebut presumption absent evidence of tyre management; vicarious liability of owner for driver; assessment of general damages, loss of earning capacity and medical expenses; interest and costs.
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4 May 2004 |
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Res ipsa loquitur applied; defendants vicariously liable and plaintiff awarded general, earnings and medical damages with interest.
Motor vehicle accident – res ipsa loquitur – operator's duty to maintain tyres – vicarious liability – assessment of general damages and loss of earning capacity – medical expenses – interest and costs.
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4 May 2004 |
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Appeal against sentence dismissed: magistrate properly weighed mitigation and reasonably rejected community service due to serious weaponised assault.
Criminal law – Assault with intent to do grievous bodily harm – Sentence – mitigation (first offender, guilty plea, youth) v. aggravation (use of weapons, serious injuries) – suitability of community service – appellate review for misdirection.
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4 May 2004 |
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Court reduced an excessive theft sentence after finding sentencing misdirections and refusal to consider restitution.
Criminal law — Sentencing — Review for misdirection — Failure to consider recovered property and restitution — Improper emphasis on retribution — Mitigation including first-offender status, family responsibilities and inflation — Sentence varied on review.
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4 May 2004 |