|
Citation
|
Judgment date
|
| March 2017 |
|
|
Applicant granted interdict preventing respondent from interfering with maize crop pending determination of appeal.
Interdicts – protection of crops pending appeal; effect of noting appeal (suspension of order); spoliation orders and appeals; non‑joinder not fatal; balance of convenience
|
14 March 2017 |
|
Applicant’s unexplained delay and absence of bona fide defence justified dismissal for want of prosecution; rescission refused.
Civil procedure — dismissal for want of prosecution — Order 32 r 236(3) — rescission — requirements of wilful default and good/sufficient cause — bona fide defence — service address and delay
|
13 March 2017 |
|
Court awarded custody to the respondent, fixed limited access and maintenance, and a 45% share in the applicant’s partly paid stand.
Divorce; child custody and access — best interests of the child; child maintenance — assessment against payer’s means; spousal maintenance; division of matrimonial property — indirect contributions to land; assessment of share in partly paid stand
|
13 March 2017 |
|
A fine for cultivating nine dagga plants for sale was inadequate; an exemplary custodial sentence (3–4 years, partly suspended) was required.
Criminal law – Unlawful dealing in dangerous drugs (s 156(1)(b)) – Cultivation of multiple dagga plants for sale – Adequacy of sentence – Sentencer's duty to state reasons when departing from usual custodial approach – Review: withholding certificate and correction.
|
10 March 2017 |
|
Criminal conviction supported civil liability; damages for pain and future medical care upheld; appeal dismissed.
Civil damages for assault; credibility findings; s31(3) Civil Evidence Act presumption from criminal conviction; assessment of pain and suffering and future medical expenses; appellate interference with discretionary awards
|
9 March 2017 |
|
Court declared posthumous re-registration and ‘legitimation’ of a child’s birth certificate irregular and the certificate null and void.
Births and Deaths Act – re-registration of birth – legitimation not recognized under statute – distinction between s12 (initial registration of child born out of wedlock), s18 (change of name) and s19 (re-registration upon legitimization by marriage) – validity of birth certificate – declaratory relief under High Court Act s14
|
9 March 2017 |
|
A magistrate lacked jurisdiction to determine customary-spouse status referred from a Master's edict meeting under the amended Administration of Estates Act.
Administration of Estates Act — Part IIIA — repeal of old s68 — Master’s powers at edict meetings — no statutory referral to magistrates’ court; Jurisdiction — magistrate’s inquiry into customary spouseship invalid where referral unauthorised; Procedural fairness — absence of founding papers, oath and cross-examination; Nullity of proceedings where court lacks jurisdiction
|
9 March 2017 |
|
Applicant’s urgent chamber application dismissed for non-compliance with rules and for seeking spoliation on a prima facie basis.
Civil procedure – Chamber applications – Rule 241/form 29 and 29B compliance – Condonation for non-compliance – Spoliation (mandament van spolie) – final relief not to be granted on prima facie right – Citation of trusts – Rule 8A – Disputes of fact requiring viva voce evidence.
|
9 March 2017 |
|
Review of adjourned disciplinary proceedings denied: defective opposition disregarded but applicants' evidence was insufficient.
Judicial review — disciplinary proceedings — review of unterminated proceedings disfavoured; defective opposing affidavits; requirement for supporting documentary evidence in applications to set aside disciplinary trials; allegations of unfair trial and altered record must be proved
|
8 March 2017 |
|
An agreement to sell land before statutory subdivision permit is void; restitution awarded to applicants for unjust enrichment.
Property law — Regional Town and Country Planning Act s 39 — prohibition on agreements for change of ownership before subdivision permit — suspensive (conditional) sale — specific performance barred where agreement illegal at inception — unjust enrichment and restitutionary remedy — non‑joinder of agent not fatal
|
8 March 2017 |
|
Transfers procured by an agent without owner consent were declared fraudulent; title cancelled, vehicle returned, counterclaim dismissed.
General Power of Attorney – clause authorising sale – fraudulent sale by agent – cancellation of title deed – vindicatory recovery of property – bona fide purchaser issue – conveyancer’s denial of signature – counter‑claim non‑compliance Order 32 r 229A(1) – attorney‑and‑client costs
|
8 March 2017 |
|
Plaintiff proved a customary union and universal partnership, entitling her to a 50% share of the house acquired during the union.
Customary union — proof of lobola/introduction and commencement date; Property division — acquisition during union; Universal partnership and unjust enrichment; Contribution evidence and credibility; 50% partition award
|
8 March 2017 |
|
A lessee-to-buy with vacant possession has locus standi to evict an unlawful occupier despite lacking registered title.
Property law – lease-to-buy: lessee given vacant possession acquires limited real right and locus standi to sue for eviction; Land allocation – 10% commonage surrendered to State overrides cooperative allocation; Evidentiary rule – failure to produce allocation documents and to call key witness undermines defence; Demolition of unauthorised structures; Costs on higher scale for intransigence
|
8 March 2017 |
|
Plaintiff failed to prove malicious arrest or lack of reasonable and probable cause; claim dismissed with costs.
Delict — malicious arrest and prosecution — setting law in motion; reasonable and probable cause (subjective and objective elements); malice requirements; acquittal not determinative; vicarious liability of employer
|
8 March 2017 |
|
The applicant's disciplinary dismissal was upheld; no right to additional submissions or written reasons absent request and internal remedies not exhausted.
Administrative law — Disciplinary dismissal under Prisons [Staff] Regulations s17(a) — review application — audi alteram partem and scope at sentence-review stage — duty to give reasons only if requested — validity of affidavit commissioned by public servant
|
8 March 2017 |
|
Eviction under an instalment sale is subject to prescription and requires lawful cancellation and statutory notice before enforcement.
Prescription — Eviction claims under instalment sale treated as claims for payment subject to Prescription Act; Contractual Penalties Act s 8 notice and cancellation requirements; necessity to plead demand and cancellation before seeking eviction.
|
8 March 2017 |
|
Interim interdict suspending EGM resolutions and preventing share‑register changes pending resolution of directorship dispute.
Company law – Interim interdict – Requirements: prima facie right, irreparable harm, balance of convenience – Amendment of draft order during hearing – Self‑help after noting appeal – Preservation of shareholding pending litigation
|
6 March 2017 |
|
Sentencing for rape must address and weigh s 65(2) factors; perfunctory, tariff-like reasoning may warrant withholding of certificate though sentence may stand.
Criminal law — Sentencing — Rape — Requirement to consider s 65(2) factors (age, force, injury, weapon use, relationship) — Perfunctory/tariff approach to sentence is misdirection — Where sentencing flaws do not cause substantial miscarriage, appellate interference not warranted — Certificate of correctness withheld.
|
6 March 2017 |
|
Applicant granted Rule 64 summary judgment on lease arrears; respondents failed to establish a bona fide defence.
Civil procedure – Summary judgment (Rule 64) – bona fide defence threshold – lease finance agreements – repossession and claim for rentals – belated challenge to interest computation inadmissible
|
3 March 2017 |
|
Court held corporal punishment in schools and homes violates children’s constitutional rights; declaration granted and referred to Constitutional Court.
Constitutional law – children’s rights – corporal punishment in schools and homes – violation of sections 51, 53 and 81 – public‑interest standing s85(1)(d) – referral to Constitutional Court s175(1) & (5).
|
3 March 2017 |
|
Application for condonation and rescission dismissed for inordinate unexplained delay; service upheld and costs awarded against applicants.
Civil procedure — Condonation of late filing of heads of argument — Rescission of default judgment — Validity of service — Inordinate delay and lack of reasonable explanation — Rule of finality (vigilantibus non dormientibus jura subveniunt) — Costs on legal practitioner and client scale.
|
3 March 2017 |
|
Single-witness identification secured conviction of first accused; second acquitted due to alibi doubts and possible misidentification.
Criminal law – Murder – Single-witness identification – credibility and caution where witness is simple and alleges police coercion – Bare denial/alibi – s 47(1)(b) (realisation of risk).
|
3 March 2017 |
|
Accused acquitted by reason of insanity and ordered transferred to psychiatric institution for treatment pending discharge.
Criminal law – Insanity acquittal – Special verdict – Mental Health Act s29(2)(a) – Post-acquittal transfer for psychiatric treatment – Fitness to stand trial – Administrative detention versus punishment.
|
3 March 2017 |
|
Bail pending appeal refused where applicants lacked reasonable prospects and faced a real risk of absconding given lengthy sentences.
Criminal procedure — Bail pending appeal — Onus on applicant to show positive grounds and reasonable prospects of success — Risk of abscondment weighed against liberty — Evidence of tampering with brand marks (rebranding).
|
3 March 2017 |
|
Use of an axe to the head permits inferring intent to kill; accused convicted of murder and sentenced to 18 years.
Criminal law – Murder – Inference of intent from use of lethal weapon (axe) to the head – Credibility assessment – Rejection of accidental/ intoxication defence – Sentence: 18 years imprisonment.
|
3 March 2017 |
|
A trust may sue in its name; the respondent must pay US$3,000 monthly under the addendum made a court order.
Trust law; Order 2A
High Court Rules — trustees may sue in the name of the trust; enforcement of consent addendum made an order of court; effect of actual/constructive knowledge of an order despite lack of personal service; obligation to apply to set aside vs. disobeying orders; maintenance obligations under court orders
|
2 March 2017 |
|
A High Court may not rescind or vary a judgment under r 449 while that judgment is pending on appeal in the Supreme Court.
Civil procedure — Rescission/variation of judgment (Order 49 r 449) — Judgment subject to pending Supreme Court appeal — lower court lacks power to vary or set aside such judgment; procedural non-compliance — notice of opposition — condonation/ upliftment
|
2 March 2017 |
|
An interested spouse may challenge a default judgment and obtain interim return of attached matrimonial goods pending rescission.
Civil procedure – Default judgment – Rescue/Rescission (r449) – Interested third party (spouse) challenging execution – Attachment and interim return of goods – Res judicata and execution as a continuum.
|
2 March 2017 |
|
Debt secured by a notarial covering bond attracts a six‑year prescription; special plea of three‑year prescription dismissed.
Prescription Act — s 15(c)(i) six‑year prescription for notarial contracts; notarial general covering bond; prescription begins when debt is due (s 16); pleadings — declaration read with summons; special plea in bar for prescription dismissed.
|
2 March 2017 |
|
Accused found not guilty by reason of insanity but ordered transferred to a psychiatric institution, not discharged.
Criminal law – mental disorder defence (s227 Criminal Law) – special verdict not guilty by reason of insanity (s29(2) Mental Health Act) – discharge under s29(2)(c) requires persuasive medical evidence and post-release arrangements – where lacking, order transfer to mental health institution under s29(2)(a).
|
2 March 2017 |
|
Meritless appeal against ejectment and rental arrears dismissed; costs awarded on an attorney-client scale.
Lease law – statutory tenancy after expiry – rent payable in United States dollars – proof by receipts and correspondence; Evidence – discovery obligations and consequences; Usurious interest – deduction of improper charges; Appellate review – Nyahondo standard for interfering with trial findings of fact; Costs – attorney-client scale for vexatious/abusive appeals
|
1 March 2017 |
|
A holding-company shareholder may have standing to challenge disposal of subsidiary property; exception dismissed.
Exception — cause of action — shareholder standing to challenge subsidiary asset disposal — corporate personality and piercing the veil — locus standi procedural point — requirement of restitution not a ground of exception
|
1 March 2017 |
|
Court granted interim interdict restraining sheriff from attaching property and ejecting applicant pending determination of stay application.
Arbitration award – registration and execution – pending challenge to registered award and application for stay – urgency to interdict sheriff’s attachment and ejectment – service on respondent’s legal practitioners – provisional relief granted
|
1 March 2017 |
|
A lender must secure a borrower’s signed document at loan inception to charge interest above the prescribed rate.
Money lending — s14(1) Money Lending and Interest Rates Act — "at the time of the loan" means at advancement — s14 mandatory — failure to comply renders excess interest unenforceable — post‑hoc acknowledgement insufficient
|
1 March 2017 |
|
Applicant granted urgent interdict to retrieve personal property from company premises amid credible threats and disposal risk.
:[
|
1 March 2017 |
|
Challenge to arbitral award dismissed: application timely and award not contrary to public policy.
Arbitration — Setting aside award — Public policy (Model Law art 34(2)(b)(ii)); Time limit for challenge (art 34(3)) — Receipt of award; Contract interpretation — Termination clause; Standard of review — ZESA v Maphosa restrictive public policy test.
|
1 March 2017 |
|
Rescission application held invalid for late filing without condonation after applicants had actual knowledge via execution.
Civil procedure — Rescission of default judgment — Time limit for rescission (Order 9 r 63) — Condonation required for late filing — Actual knowledge of judgment inferred from service of writ/attachment — Late rescission without condonation null and void.
|
1 March 2017 |
|
A lapsed indictment under s160(2) mandates dismissal for want of prosecution; the accused must be released, though re‑indictment remains possible.
Criminal procedure — s160(2) indictment lapse — dismissal for want of prosecution — meaning of 'brought to trial' — postponement limits — accused’s right to trial within reasonable time — release under s321 — re‑indictment under s322 — prosecutorial duty to monitor indictments.
|
1 March 2017 |
|
Co-perpetrator liability under s196 upheld where four sons jointly burned their father, each sentenced to 20 years imprisonment.
Criminal law – Murder – Patricide by burning – Co-perpetrator liability – s 196 Criminal Law (Codification and Reform) Act – Common purpose and presence – Foresight of risk – Mitigation: belief in witchcraft, first offender
|
1 March 2017 |
|
Accused convicted as co-perpetrator under section 196 for murder of an elderly victim; sentenced to 20 years imprisonment.
Criminal law – Murder – Liability of co-perpetrators – Presence and association – Section 196 Criminal Law (Codification and Reform) Act – Murder under s47(1)(b) – Credibility of defence of non-participation – Sentence: 20 years custodial.
|
1 March 2017 |
|
Applicants failed to prove the elements of a final interdict; affidavits must contain evidentiary material in motion proceedings.
Civil procedure – Interim and final interdicts – Requirements for final interdict: clear right; injury actually committed or reasonably apprehended; no alternative remedy – Motion proceedings – founding affidavits as pleadings and evidence – need for evidentiary material to prove alleged copying and loss.
|
1 March 2017 |