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| March 2017 |
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Out-of-time leave to appeal without condonation dismissed; claim for house improvements lies against owner's estate; costs on attorney-client scale.
Civil procedure — leave to appeal — time limits and condonation under High Court Rules; family law — withdrawal of admissions at pre-trial; property law — bona fide possessor's claim for improvements; costs — attorney-client scale for flagrant non-compliance
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31 March 2017 |
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Application dismissed as non-urgent; pending administrative appeal and lawful document retention precluded interim relief.
Urgency; Administrative remedies; Customs and Excise Act (Temporary Import Permit; immigrant’s rebate); Seizure/retention of documents (s203); Exhaustion of internal remedies; 'Dirty hands' doctrine
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31 March 2017 |
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A challenge to the Master’s approval of an estate account requires timely review/motion proceedings, not a delayed declaratory action.
Administration of Estates Act s52(8)-(9) — challenge to Master’s approval of distribution account must be by motion within 30 days; High Court Act s27 — review grounds (absence of jurisdiction/gross irregularity); distinction between declaratory relief and review; procedural timeliness; costs on attorney-and-client scale
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30 March 2017 |
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Divorce granted: mother custodial, father granted reasonable access and ordered to maintain children; spousal maintenance dismissed; matrimonial home preserved for children until independence.
Family law – divorce and ancillary relief – custody and reasonable access – child maintenance (school fees, medical aid, monthly contribution) – spousal maintenance claim dismissed for lack of need – division of matrimonial home and property – consideration of assets acquired before and during marriage – best interests of the child paramount
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30 March 2017 |
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Fiscal Appeal Court confirmed estimated VAT assessments due to taxpayer's failure to produce records, reducing penalty to 10%.
Tax — Value Added Tax — estimated assessments — reliance on seized computers and forensic decoded data — taxpayer’s failure to produce primary records — burden of proof on taxpayer — discretion to impose penalty reduced from 100% to 10% — Fiscal Appeal Court not forum for collateral AJ/constitutional review
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30 March 2017 |
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Prolonged delay and a defective certificate of urgency rendered the application non-urgent and it was removed from the urgent roll.
Civil procedure — Urgent chamber application — urgency self-induced by delay — defective certificate of urgency — Labour Act s92E(2),(3) — registration and execution of arbitral awards — stay of execution — responsibility for delays of legal practitioners
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29 March 2017 |
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Condonation refused where applicant misrepresented being unrepresented, filed out of time, and had poor prospects of success.
Civil procedure — condonation for late review application — representation at trial v. self-representation — appeal noted versus review — service rules (r 231(1)) — costs for dishonest conduct
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29 March 2017 |
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Plaintiff’s claim for fertiliser or proceeds dismissed as prescribed; tender inadequate and no proven replacement undertaking.
Storage of goods (gratuitous) – sale of stored goods – tender of sale proceeds – evidentiary weight of unsigned cheque and hearsay letter – Prescription Act s16, s18(1) – prescription begins when creditor becomes aware of debtor and facts – interruption of prescription requires acknowledged liability
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29 March 2017 |
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Rei vindicatio refused where Sheriff’s admitted irregularities and pending set-aside application rendered respondents’ possession potentially lawful.
Property law — rei vindicatio — registered title vs. possession — Sheriff’s sale irregularities — High Court Rules r 359 right to request set-aside — pending application to set aside sale — possession may be lawful; eviction refused
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29 March 2017 |
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Applicant failed to prove urgency, prima facie right, or compliance with statutory remedies and notice; urgent application removed.
Customs and Excise Act – seizure and embargo powers – burden of proof on owner regarding duties; Urgent procedure – requirements for urgency and adequacy of certificate of urgency; Interim interdict – impermissibility of granting final relief on prima facie evidence; Exhaustion of domestic remedies – appeal to Commissioner General and Fiscal Court; s196(1) 60-day notice requirement
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29 March 2017 |
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Whether the Master validly declared an alleged customary-law spouse and allocated immovable property absent supporting evidence.
Administration of Estates Act s68F – Master’s jurisdiction to resolve beneficiary disputes – Review for gross unreasonableness – Determination of spousal status (customary marriage v cohabitation) – Allocation of immovable property – Procedural irregularity in Magistrate’s purported decision
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29 March 2017 |
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Accused's negligent firing amounted to culpable homicide; second shot excused by self-defence; effective two-year imprisonment.
Criminal law — culpable homicide v. murder — negligent use of firearm; defence of property (ss 257–259) and resisting arrest (s 42) inapplicable; self-defence (ss 253–255) upheld for subsequent shot; sentencing for culpable homicide aggravated by flight
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29 March 2017 |
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The accused was acquitted where medical evidence failed to prove causation and foreseeability for culpable homicide.
Criminal law – Murder (s 47) – Culpable homicide (s 49) – Negligence and foreseeability – Causation – Inconclusive medical evidence – Acquittal where mens rea and causation unproven
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29 March 2017 |
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Conviction quashed where magistrate failed to consider self-defence and to assist an unrepresented, youthful accused.
Criminal law – Self-defence – Requirements under s 253 – Assessment in light of accused’s circumstances; Criminal procedure – Duty of trial magistrate to assist unrepresented accused – obligation to explain charges and possible defences; Review – conviction unsafe where judicial assistance absent and viable defence unconsidered
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28 March 2017 |
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Noting an appeal does not suspend execution; a party must apply for stay under s 40(3) of the Magistrates Court Act.
Magistrates Court Act s 40(3) — execution pending appeal — noting an appeal does not automatically suspend execution — party must apply for stay — extant court orders binding until set aside or suspended
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27 March 2017 |
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Applicant's urgent application dismissed as not urgent for failing to exhaust contractual dispute resolution and creating urgency.
Contract law — termination for breach and immediate payment under contractual clause; urgency — self‑created urgency; requirement to exhaust contractual dispute resolution (mediation/arbitration); spoliation/interdict — urgent application threshold
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24 March 2017 |
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Whether lis alibi pendens bars a High Court claim against sureties where the Magistrates Court action is against the principal debtor.
Civil procedure – lis alibi pendens – requirements: same parties, same subject matter, same cause of action – Distinction between claim on lease and claim on separate deed of suretyship – Effect of provisional liquidation on forum choice – Forum shopping
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24 March 2017 |
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Court upheld custodial sentence for repeat teacher‑assault, partially suspended 3 months; leave to appeal refused for lack of prospects.
Criminal law — Sentencing — Assault — Consideration of aggravating and mitigating factors — Previous suspended sentence and effect of five‑year suspension under s 358(2)(b) — Female offender — Suspension of portion of sentence — Leave to appeal (r 263) — Prospects of success
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24 March 2017 |
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Murder charge unsustainable; accused convicted of culpable homicide and sentenced to six years, two years suspended.
Criminal law – Murder v. culpable homicide – sustainability of murder charge; causation where body decomposed; novus actus; sentencing balancing provocation, first offender status, pre-trial custody and deterrence
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24 March 2017 |
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The court granted divorce and awarded the applicant 60% of the main residential stand, the Ruwa stand, movables and livestock.
Divorce; Matrimonial property distribution under Matrimonial Causes Act s7; allocation of residential stands; A1 communal land and spouse compensation (Agricultural Land Settlement Regulations s14); valuation and buy-out option; allocation of movables and livestock
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23 March 2017 |
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Legitimate expectation protects procedural rights (a hearing) not substantive entitlements to purchase state houses; appeal dismissed.
Administrative law — legitimate expectation — distinguishes procedural (right to be heard) from substantive entitlements — general government policy change; hearing required but courts reluctant to interfere with policy implementation unless manifestly unreasonable
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23 March 2017 |
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Leave to appeal granted where magistrate’s acquittal was perverse given identification and medical corroboration.
Criminal law – Prosecutor-General’s leave to appeal – Acquittal on view of facts which could not reasonably be entertained – Perverse inference test – Identification evidence and medical corroboration – Holistic evaluation of witness evidence
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23 March 2017 |
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Failure to file an answering affidavit or set the matter down permits dismissal for want of prosecution despite an absent record.
Civil procedure — Dismissal for want of prosecution — Order 32 r 236(3)(b) — Failure to file answering affidavit or set matter down within prescribed time — Record under r 260 not prerequisite — Discretion and condonation
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23 March 2017 |
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Defendant liable for inputs collected under facility; awarded capital, in duplum interest, contractual 28% interest and attorney-and-client costs.
Contract – working capital and inputs facility – evidentiary weight of despatch vouchers and signed authorisation – collections by agents bind beneficiary – liability for inputs collected; Interest – penalty rate of 28% p.a. and in duplum limitation; Costs – attorney-and-client scale awarded
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22 March 2017 |
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Short delay condoned where sheriff’s procedural mis-notification and an unreasonably low sale price vitiated private treaty sale.
Civil procedure — condonation for late review — Order 40 r 359; Judicial/private treaty sale — notice to judgment debtor — procedural fairness and legitimate expectation; Judicial sale — unreasonably low purchase price; Forced sale value vs bid price; Sheriff’s procedural irregularity vitiating sale
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22 March 2017 |
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Duplicate receipting of single bank deposits by a receipting clerk amounted to theft; employer entitled to recover value under condictio furtiva.
Condictio furtiva — employee receipting clerk issuing duplicate receipts from single bank deposits — proof of theft and intention — employer recovery of value of stolen fuel; interest and costs
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22 March 2017 |
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Review of police disciplinary convictions dismissed because Single Officer’s Court complied substantially and reasons were adequate.
Police disciplinary proceedings; Single Officer’s Court; adequacy of record; order of pronouncing verdicts versus reasons; sufficiency of reasons for sentence; review of disciplinary convictions; bias and recusal
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22 March 2017 |
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Whether AODs were signed under economic duress — court found no duress and granted judgment for the applicant.
Contract law – Acknowledgment of debt – Duress and undue influence – Economic duress requires imminent/inevitable evil, protest and no viable alternative – Caveat subscriptor – burden on signatory to show severe coercion
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22 March 2017 |
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Where a buyer knew of an earlier sale and the first purchaser was in occupation, the first purchaser succeeds; res judicata did not bar the claim.
Property law — double sale — priority of first purchaser where later purchaser had notice — res judicata inapplicable where parties and cause differ — default judgment obtained despite notice not decisive
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22 March 2017 |
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Whether contracts in foreign currency are void for lack of exchange control authority and enforceability of related guarantees.
Exchange Control Regulations (S.I. 109/1996) – legality of contracts denominated in foreign currency – distinction between entering into an agreement and unlawful payment without authority – suretyship enforceability – res judicata requires a final definitive judgment – lis alibi pendens bars concurrent determination of identical pending proceedings
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22 March 2017 |
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An application for leave to appeal does not suspend a Labour Court judgment; monies paid under execution may be recovered by restitution.
Labour law – Appeal and leave to appeal – Filing application for leave to appeal does not suspend Labour Court decision – s92F and s92E(2) – Execution and restitution – Unjust enrichment
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22 March 2017 |
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Failure to implement a procurement judgment was not contempt where subsequent events overtook the order and no wilful disobedience was shown.
Contempt of court — committal — requires wilful and mala fide disobedience — wilfulness presumed but rebuttable — subsequent events overtaking court orders — procurement/tender disputes
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22 March 2017 |
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Court enforces monetary terms of a filed deed of settlement by entering judgment despite non-execution of ancillary sale agreement.
Settlement agreements — deed of settlement reduced to writing and filed in court — enforceability by entry of judgment; Severability of monetary obligations from ancillary contractual obligations; Refusal to sign separate agreement cannot introduce new terms to avoid settlement
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22 March 2017 |
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Claimant failed to prove ownership of seized machinery; customs documents and lack of ATIP showed debtor's permanent importation, claim dismissed.
Interpleader – attachment under writ – burden of proof on claimant to establish title/possession; import/export documentation; ATIP and temporary import privileges; customs consignee and VAT indicating permanent importation; dismissal for failure to prove ownership
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22 March 2017 |
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Applicant’s improper dismissal application and bad-faith persistence amounted to abuse of process; applicant ordered to pay higher scale costs.
Civil procedure — dismissal for want of prosecution vs. order to compel further particulars; abuse of court process; costs — uplift to legal practitioner–client scale
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22 March 2017 |
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Magistrate correctly refused bail due to past conduct, realistic witness intimidation risk and likelihood of the applicant's conviction.
Bail — section 117 Criminal Procedure and Evidence Act — relevance of past conduct (including unconvicted acts and pending summons) — assessment of likelihood of witness interference — likelihood of conviction as ground for refusal of bail
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22 March 2017 |
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A non-party spouse who acted as agent lacks privity to resist eviction after seller ceded rights via default judgment.
Contract law – Privity of contract; Third party spouse acting as agent lacks enforceable contractual rights
Default judgment – Cession of rights vests title; purchasers’ locus standi to evict
Marital property – Marriage does not confer automatic privity
Costs – court may depart from usual rule where occupier’s circumstances justify equal costs
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22 March 2017 |
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Interim stay granted on distribution of estate sale proceeds pending condonation and review of the Master’s removal of the nominated executor.
Administration of Estates Act — executor dative — nomination and acceptance — letters of administration not always decisive (s68B, customary law) — removal of executor by Master — urgent application — stay of disbursement of estate sale proceeds pending condonation and review — irreparable harm and balance of convenience
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17 March 2017 |
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Applicant failed to show exceptional changed circumstances for bail where strong State case and flight risk persisted.
Criminal procedure – Bail pending trial – Murder in course of armed robbery – Part 1 Third Schedule offences – Applicant must prove exceptional circumstances (s 117) – Burden on accused (s 115) – Passage of time not automatic ground for bail – Indictment lapse and s 160 – Strong State case and flight risk
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17 March 2017 |
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Summary judgment for ejectment granted where respondent was barred; senior lawyer referred to Law Society for ethical inquiry.
Civil procedure – Summary judgment – Default judgment where respondent barred for failing to file heads – In-court concession – Request for reasons to appeal as abuse of process – Professional ethics – Referral to Law Society for inquiry
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16 March 2017 |
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A court, not parties, decides conversion of application to action; inadequate service and lack of legal basis warrant dismissal.
Civil procedure – conversion of application proceedings into action proceedings – competence and discretion of the court – parties cannot unilaterally convert – rule 239(b) (oral evidence) – adequacy of certificate of service
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15 March 2017 |
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Whether State immunity from execution under s 5(2) unjustifiably infringes access to courts, dignity and equality.
Constitutional law — State immunity from execution (s 5(2) State Liabilities Act) — access to courts; human dignity; equality — limitation and proportionality (s 86) — non-derogable rights (s 86(3)) — enforcement of judicial orders — referral to Constitutional Court
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15 March 2017 |
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Plaintiff failed to prove prima facie entitlement to levy arrears; absolution granted for lack of evidence of employee numbers and salaries.
Labour law — Collective bargaining agreement — Employer levy obligations — Absolution from the instance — Prima facie proof of employee numbers, grades and payment of salaries required to establish arrears
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15 March 2017 |
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Whether a bonded warehouse owner may retain third-party vehicles as a lien for an agent’s unpaid storage charges.
Customs/bonded warehouse – possession and release of imported goods – right of retention (lien) – cannot be exercised over third-party property; despoilment; release orders; storage charges
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15 March 2017 |
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Court pierced corporate veil under s 318, holding the director personally liable after finding he misappropriated company proceeds.
Companies Act s 318 – piercing the corporate veil – director’s personal liability for company debts – recklessness, gross negligence or intent to defraud – evidential burden to rebut affidavit allegations
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15 March 2017 |
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Applicant’s challenge to a remitted trial de novo dismissed as abusive; fresh magistrate trial permitted.
Criminal procedure – trial de novo – remittal to magistrates’ court – alleged third trial and constitutional rights – abuse of process – review of uncompleted inferior court proceedings – costs de bonis propriis
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15 March 2017 |
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Registration of arbitral award upheld; penalty (rouwkoop) reduced under the Contractual Penalties Act, not contrary to public policy.
Arbitration — Registration of arbitral award — Public policy defence construed restrictively — Contractual penalty v pre-estimated damages (rouwkoop) — Contractual Penalties Act s 4 — Finality of arbitration
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15 March 2017 |
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High Court declines jurisdiction, holding Labour Court exclusively competent to determine the retrenchment dispute of right.
Labour law – Dispute of right / unfair labour practice – Exclusive jurisdiction of the Labour Court – Declaratory relief – Substance over form – ss 2, 8, 89, 93 Labour Act – Parties cannot bypass Labour Court by labelling claims as declaratur
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15 March 2017 |
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A retrospective provision removing employers' vested rights violates the Constitution and is invalid; matter referred to Constitutional Court.
Labour law — Retrospective application of statute — Section 18 Labour Amendment Act 5 of 2015 — Taking away vested rights — Presumption against retrospectivity — Protection and benefit of the law — Constitutional invalidity and referral to Constitutional Court
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15 March 2017 |
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Delay after default under a court‑ordered settlement defeated an urgent application to stay execution, with ordinary scale costs.
Urgent chamber application — urgency — when need to act arises; Deed of Settlement made order — default triggers quantification and enforcement; delay and inexcusable laches; stay of execution; costs ordinary scale
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14 March 2017 |