|
Citation
|
Judgment date
|
| July 2006 |
|
|
Relitigation of property transfer after sale in execution barred by prior in rem judgment and procedural non‑compliance.
Civil procedure – sale in execution – participating writs and sheriff’s duties (High Court Rules 327, 331(3), 367) – distribution pro rata and preferent creditors – res judicata (judgment in rem) – prior order requiring payment of costs and security for costs – perpetual silence for abuse of process – prescription (mortgage bond: 30 years)
|
18 July 2006 |
|
Applicant failed to show a prima facie right or irreparable harm to justify interdicting auction of future hunting rights.
Administrative/Constitutional: Interim interdict — requirements for interim relief (prima facie right, irreparable harm, balance of convenience, no alternative) — statutory regulation of hunting rights (Parks and Wildlife Act s37) — need for ministerial concurrence for grants/renewals — auction of future rights does not affect subsisting contract.
|
13 July 2006 |
|
Court held mandatory minimums in section 12 did not apply to donkey thefts or to offences committed before the amendment, and transfers were improperly made.
Criminal law – Stock Theft Amendment Act 6 of 2004 – mandatory minimum sentences for theft of "equine or bovine" – statutory interpretation whether donkeys (asses) are covered – retrospective operation of penal statutes – presumption against retrospective effect – magistrates' jurisdiction and s54(2) Magistrates Court Act – improper transfers under s225(b)(i) Criminal Procedure and Evidence Act.
|
11 July 2006 |
|
Rape conviction quashed where surrounding facts permitted reasonable possibility of consensual intercourse and complaints were not spontaneous.
Criminal law — Rape — Consent — Inference from clothing — Voluntariness and spontaneity of complaint — Burden of proof and benefit of doubt — Danger of false incrimination.
|
4 July 2006 |
|
Cession of municipal lease-to-buy rights is binding between parties but cannot bind or compel the municipality or a spouse to consent.
Municipal property — cession of rights under suspensive/lease-to-buy agreements — enforceability between contracting parties but not against municipality without seller’s full title — spousal consent requirement to cession — no cause of action to compel third party or spouse to consent.
|
4 July 2006 |
|
Whether the Minister must reconvene hearings before deciding retrenchment under section 12C, or may decide on the Board’s papers within statutory time limits.
Labour law – retrenchment procedure – section 12C Labour Act – scope of right to be heard; Administrative Justice Act – audi alteram partem; Ministerial decision on papers where Retrenchment Board fails to decide within statutory period; curator’s authority to manage bank and retrench employees.
|
4 July 2006 |
| June 2006 |
|
|
High Court declines jurisdiction over substantive labour remedies, which must be pursued in the Labour Court.
Labour law — Jurisdiction — Exclusive first-instance jurisdiction of the Labour Court under Labour Relations Act — High Court’s inherent jurisdiction and limits — Declaratory relief versus substantive orders — Retrenchment regulations (SI 186/2003)
|
27 June 2006 |
|
Application dismissed: disputed oral contract and unquantified breach damages unsuitable for resolution on affidavits; trial required.
Procedure — Application vs action — Disputed facts and oral agreements — Appropriateness of motion proceedings — Assessment of damages for breach of contract requires trial evidence and cross-examination
|
27 June 2006 |
|
A perpetual interdict preventing a spouse disposing of assets cannot be granted without ownership evidence or valid ex parte justification.
Family law — Matrimonial assets — Interim interdicts — Ex parte applications and right to be heard — Requirement to plead ownership or joint ownership to restrain disposal — Section 7 Matrimonial Causes Act does not require retention of assets during marriage
|
20 June 2006 |
|
Buyer of share‑certificate occupancy rights cannot claim breach where association withholds consent; sale thus fell through and claim dismissed.
Property law – share certificate/cession of occupancy rights – distinction between sale and cession – conditional/suspensive agreements subject to third‑party consent – seller’s non‑liability where grantor (association) withholds consent.
|
20 June 2006 |
|
Magistrate failed to determine statutory 'special circumstances' and misapplied sentencing powers in a stock-theft case.
Criminal law — Stock Theft Act s12 (mandatory minimum sentence) — requirement to ascertain and record 'special circumstances' — amended s9 limits power to senior/provincial/regional magistrates — sentencing procedure and suspension requirements under s358(2)(b) Criminal Procedure and Evidence Act — referral under s54(2) Magistrates Court Act.
|
20 June 2006 |
|
Magistrate lacked jurisdiction to impose mandatory minimum stock-theft sentence and must refer record under section 54(2).
Criminal law – Stock theft – Mandatory minimum sentences – Jurisdiction of magistrates under amended s9 of the Stock Theft Act – Procedure on review and referral to Attorney-General under s54(2) Magistrates Court Act – Effect of quashed sentence on resubmission of record.
|
20 June 2006 |
|
Court dismissed challenge to arbitral award, holding public-policy review is narrow and was not established by the applicant.
Arbitration — setting aside award — public policy — narrow scope — courts limited to gross irregularity, illegality or failure of justice — merits not re-opened
|
14 June 2006 |
|
Delay alone does not defeat a customary-law claim for division of matrimonial property; court may order division any time after divorce.
Customary law – division of matrimonial property – Prescription Act inapplicable to customary-law rights – delay may vitiate claim if not clear and reasonable – s 7(1) Matrimonial Causes Act permits division at any time after divorce – evidential assessment of contribution to matrimonial home.
|
13 June 2006 |
|
High Court may grant urgent relief against ex parte magistrates' eviction orders that prima facie breach notice rules and natural justice.
Civil procedure – lis pendens and discretion to hear urgent proceedings despite parallel magistrates' matters; Magistrates Court Rules – Order 22 Rule 1 and limits on ex parte eviction orders; natural justice – audi alteram partem; interim relief and spoliation; return of property seized on eviction.
|
11 June 2006 |
|
High Court granted urgent interim relief where magistrates' ex parte evictions without notice were prima facie void.
Urgent Chambers — lis pendens — discretion to hear High Court matter despite pending Magistrates’ proceedings; Magistrates’ Court Rules Order 22 Rule 1 — notice required for orders affecting others; ex parte eviction without notice prima facie void; audi alteram partem; judicial officers should not depose to affidavits defending their own orders; interim relief and release of property.
|
11 June 2006 |
|
Applicant failed to prove donation; a personal right of occupation is non-transferable and executor cannot claim title.
Property law – proof of donation – formalities of affidavits – admissibility of unsworn statements – personal right of occupation/usufruct non-transferable – executor dative's lack of proprietary entitlement.
|
6 June 2006 |
|
Bail pending appeal refused where appeal prospects are poor and the applicant will still face a substantial custodial sentence.
Criminal procedure – Bail pending appeal – Prospects of success and prejudice – Custodial sentence of substantial duration – Principles in S v Kilpin – Judge who sat on appeal hearing application with parties’ consent.
|
6 June 2006 |
|
The court condoned the applicant’s 14-year delay in noting appeal and reinstated bail, finding real prospects of success.
Criminal procedure — Noting of appeals — requirements under SI 540/1979 (lodging with trial court, payment/undertaking for record, magistrate’s statement) — validity of notice not filed or case‑numbered; Condonation for late noting — explanation, prospects of success, balance of convenience; Bail pending appeal — reinstatement where condonation granted; Court’s refusal to exercise inherent review powers in place of condonation.
|
5 June 2006 |
|
High Court held an ex parte magistrate’s final eviction order was null and justified direct High Court relief.
Eviction law – Ex parte final orders – Final orders prejudicing rights require notice; nullity of ex parte eviction orders
Civil procedure – Magistrate’s Court remedies (rescission, review, appeal) vs direct High Court intervention – special reasons
Spoliation – eviction under an incompetent court order
Property – appropriation of farm equipment and materials; compliance with Acquisition of Farm Equipment and Materials Act. Ministerial withdrawal of offer letter negating claimed entitlement
|
1 June 2006 |
| May 2006 |
|
|
Convicting on a lesser charge while the accused pleads guilty to a more serious offence is a misdirection; certificate withheld.
Criminal law — Plea of guilty — Conviction on a lesser charge despite plea admitting a more serious offence — Misdirection and miscarriage of justice — Referral to High Court under High Court Act ss 25, 27, 29 — Withholding of certificate of correctness.
|
31 May 2006 |
|
Whether army members assaulted the plaintiff during joint patrols; court found liability and awarded agreed damages.
Delict — Assault by security forces — proof on balance of probabilities; credibility of witnesses; presence of army on joint patrols; state liability and damages
|
30 May 2006 |
|
Conviction quashed for failure to explain and record essential elements and improper admission of medical report; matter remitted for trial de novo.
Criminal procedure – plea and admissions under s271 – necessity to explain and record charge and essential elements to unrepresented accused; production and admission of medical reports – notice and record; retrospective validation of magistrates' jurisdiction by statute.
|
30 May 2006 |
|
Represented accused are excluded from automatic review; late or absent statutory request for review is fatal, and the sentence was within discretion.
Criminal procedure – Automatic review – Exclusion where accused is represented by legal practitioner – Requirement that legal practitioner request review from Clerk of Court within three days – High Court review under section 29(4) where proceedings not in accordance with real and substantial justice – Sentencing discretion and recidivism.
|
29 May 2006 |
|
Accused convicted of murder based on credible eyewitness identification and ballistic evidence; duress defence rejected.
Criminal law – Murder – Eyewitness identification and credibility – Ballistics linking spent cartridges to accused’s rifle – Rejection of duress/coercion defence – Hearsay on provenance of weapon disregarded.
|
28 May 2006 |
|
An Article 34(3) arbitral challenge must be filed within three months; the court cannot grant condonation beyond that period.
Arbitration Act (Model Law) – Article 34(3) – three-month time limit to set aside award – non-extendable; Statutory nature of arbitral review – not governed by High Court rules; Court’s inherent powers – cannot override Model Law time limits; Condonation – requirements; Financial incapacity – not a defence to enforcement
|
23 May 2006 |
|
Whether settlers under section 8 were entitled to sugarcane proceeds while those orders remained in force.
Interpleader; Land Acquisition Act s8 — immediate vesting of ownership in acquiring authority; entitlement to crop proceeds during subsistence of s8; effect of nullification/withdrawal/suspension of s8; representation by settlers' association; costs allocation.
|
23 May 2006 |
|
Economic necessity and public benefit constituted "special reasons" to reduce the mandatory exchange-control fine.
Exchange Control – Purchase of foreign currency from unauthorised dealers – "Special reasons in the particular case" – Wider approach including offender, offence and societal interests – Necessity/economic survival as mitigating special reasons – Sentencing: appellate intervention, counts treated as one.
|
23 May 2006 |
|
The respondents liable for excessive force during a peaceful strike causing applicant's loss of support.
[Public Order and Security Act] – Use of force – Excessive force by police/army during industrial action – Circumstantial evidence – Non-appearance of key witness undermining defence – Damages for loss of support.
|
16 May 2006 |
|
Renewed bail was refused where no material change occurred and possession of prescribed weaponry invoked a statutory presumption.
Bail — renewed application after prior refusal — changed circumstances — S v Stouyannides; Possession of prescribed/military weaponry — s10 Public Order and Security Act — statutory presumption and burden on accused; national security offences; expert classification of seized arms.
|
16 May 2006 |
|
Sale of council-owned stand without required council consent and while seller lacked title is void; occupier spouse’s rights upheld.
Property law – sale of council-owned stand – requirement of council's prior written consent to cession – nemo dat quod non habet (seller without title cannot transfer) – protection of occupier spouse in matrimonial home – interdict against transfer without consent or court order
|
10 May 2006 |
|
"Supermarket" in the leases includes the trading floor and all ancillary facilities necessary for the supermarket enterprise.
Contract interpretation – meaning of “supermarket” – includes trading floor and ancillary facilities; unsigned addendum unenforceable where lease requires signed variations; contra proferentem inapplicable where parties negotiated contemporaneously and intention ascertainable from context.
|
10 May 2006 |
| April 2006 |
|
|
Late filing of respondent’s heads without condonation triggers an automatic bar under Rule 238(2b); court granted default judgment.
Civil procedure — High Court Rules 1971 — Rule 238(2a) timing of respondent’s heads of argument — Proviso requires filing five clear days before set-down when service is close to hearing — Rule 238(2b) automatic bar for late filing without condonation — Default judgment and court’s discretion under Rule 4(c).
|
25 April 2006 |
|
An employee's fraudulent alteration of orders can bind the company under ostensible authority and Companies Act estoppel; claimed high interest must be proved.
Agency/ostensible authority – employee’s fraudulent alteration of company order binds company; Companies Act ss.12–13 estoppel against denying internal non-compliance; contractual interest claim requires evidentiary proof; costs discretionary where defence not frivolous
|
19 April 2006 |
|
Whether the respondent was vicariously liable for army members' assaults; court held no vicarious liability.
Vicarious liability — scope of employment — military personnel deployed to assist police — deserters/impostors — creation of risk versus unauthorised mode of performing duties — proof of assault and identity of assailants.
|
5 April 2006 |
|
Plaintiff failed to prove a valid transfer of the vehicle in lieu of payment; vehicle returned to defendant and costs awarded.
Contract v. vindication of ownership – transfer in lieu of payment – requirements for proving agreement – onus and balance of probabilities – possession versus ownership.
|
4 April 2006 |
|
Whether post-in-duplum interest runs from service of summons or judgment; bank failed to prove variable discount charges.
Invoice-discounting — bank charges and discount rate — proof of variable compounded discount rate; in duplum rule — post-in-duplum interest commences from date of judgment on these facts; contractual ambiguity construed contra proferentem — no attorney-and-client costs or collection commission without clear agreement.
|
4 April 2006 |
| March 2006 |
|
|
A special plea to refer to arbitration is premature unless a dispute appears on the pleadings.
Arbitration clause – dispute must be apparent ex facie pleadings – special plea premature if no substantive plea filed – heads of argument not pleadings – filing plea does not oust arbitration
|
28 March 2006 |
|
Whether the High Court’s jurisdiction to hear labour disputes was ousted by the Labour Relations Amendment Act 17/2002.
Labour law – Jurisdiction – Labour Relations Amendment Act 17/2002 – s89(6) ousting High Court jurisdiction – procedural vs retrospective effect – s47(5) savings not extending to High Court
|
28 March 2006 |
|
Magistrate lacked statutory authority to summarily convict for contempt at an ungazetted roadside location.
Criminal law – Contempt in facie curiae – Requirement of a court sitting – Limits of magistrate’s summary powers under Magistrates Court Act s71(1)(a) – Arrest powers under Criminal Procedure and Evidence Act s24 do not permit summary trial and sentencing.
|
22 March 2006 |
|
Transfer to a later purchaser who had notice of a prior sale was set aside; plaintiffs granted specific performance and costs.
Property law – double sale – notice/knowledge of prior sale – purchaser with notice cannot acquire indefeasible title; specific performance and setting aside registered transfer; special equities and balance of convenience; Deeds Registry Act s 8(1) – court’s power to cancel registered deed; counterclaim for eviction dismissed.
|
21 March 2006 |
|
HOA created a partnership; defendant breached duties of good faith and plaintiff awarded US$7.4m plus US interest.
Contract/Heads of Agreement – Partnership/joint venture by essentials – clauses 2.3, 3.5, 9 and 11; Duty of good faith/uberrima fides between partners; Breach during restraint period and continuing mandate for unfinished partnership business; Damages in foreign currency (US$) and interest at US rates; Costs.
|
21 March 2006 |
|
Whether an application to revive or deem an appeal pending suspends enforcement of an unrecorded appeal and whether review was appropriate.
Criminal procedure — existence of notice of appeal — jurisdiction to enforce sentence; lis pendens; review versus appeal; discretionary stay of enforcement; effect of application to deem appeal pending
|
19 March 2006 |
|
A review court withheld confirmation of an unduly lenient sentence for a brazen daylight robbery, deeming it inadequate.
Criminal law – Robbery – Sentence adequacy – Deterrent sentencing for daylight, premeditated robbery – Review – Withholding certificate of confirmation – Authorities: S v Mudondo; Michael Chikanya v S.
|
16 March 2006 |
|
An internal misconduct charge contained defamatory comments; qualified privilege was defeated by malice, leading to a damages award.
Defamation — internal misconduct charge — meaning and context of words — qualified privilege in official disciplinary communications — malice/bad faith defeats privilege — truth and public benefit defences — assessment of damages
|
14 March 2006 |
|
Constitutional amendment did not invalidate prior s5/s8 acquisition orders; applicants’ occupation became unlawful and interdict refused.
Land acquisition – s5(1) notice and s8(1) acquisition order – immediate vesting of ownership – statutory 45/90 day notice periods – Constitutional Amendment No.17/2005 does not annul valid pre-existing acquisition orders – interim interdict refused.
|
14 March 2006 |
|
Extreme provocation reduced murder to culpable homicide; accused’s self‑defence rejected; three‑year sentence suspended.
Criminal law – Murder v culpable homicide – extreme provocation as ground for reduction; self-defence rejected where accused was aggressor; intention and foresight from stabbing chest; sentencing – suspended sentence where mitigation strong.
|
14 March 2006 |
|
The respondents' detention of the applicants beyond 48 hours and denial of counsel were declared unlawful.
Constitutional law – personal liberty s13 – detention beyond 48 hours – requirement to produce warrants for further detention – right of access to legal representation s13(3) – unlawful interrogation contrary to court order – mandament van spolie (return of seized property) – costs on legal practitioner and client scale.
|
13 March 2006 |
|
Specification under the Prevention of Corruption Act does not suspend execution; a liquidator has no statutory right to retain property attached in execution.
Civil procedure – attachment in execution creates a judicial mortgage; Prevention of Corruption Act s 10(8) does not suspend execution; liquidator/investigator has no general statutory right to retain property attached in execution; claim for contractual interest must be legally justified on the papers
|
7 March 2006 |
|
Unlawful extended detention entitled the applicant to costs, including attorney-and-client scale, against the respondents.
Criminal procedure — detention beyond statutory 48 hours — unlawful detention; validity of warrant to extend detention; urgent application for release; costs — legal practitioner and client scale — punitive costs for contemptuous disregard of rights.
|
7 March 2006 |