Criminal procedure — whether State proved beyond reasonable doubt that appellant shot deceased and that deceased did not commit suicide — excluding evidence adduced pursuant to irregular reopening, such guilt established Gorven AJA, Cachalia JA concurring, Rogers AJA dissenting On all the evidence, including evidence adduced pursuant to reopening, such guilt established Mbatha AJA, Mokgohloa concurring.
Locus standi: Beneficial owners of shares in a company not eligible to join as co-applicants with relevant nominees holding the shares on their behalf and subject to their instructions.
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Decision by Acting National Director of Public Prosecutions to discontinue prosecution — whether decision wanting for invocation and reliance on inapposite provision of the Constitution— whether decision rational — manner in which NPA conducted litigation deserving of judicial censure. Rescission of default judgment —— Uniform Rules of Court 31 2 a and b —court of appeal may only interfere if power not properly exercised — court a quo erred - bona fide defence — carries prima facie reasonable prospects of success — appeal succeeds with costs.
Law of Delict — Damages — appellant falling off the train and sustaining bodily injuries when jostled by fellow passengers — claim based on negligent omission — negligence proved — dissent — appellant injured not by train on which he had fallen off — no proof of patrimonial or legal causation of harm. Appeal against costs — s 16 2 a i and ii of the Superior Courts Act 10 of — whether there are exceptional circumstances justifying a consideration of the matter with reference to the issue of costs — whether the Land Claims Court properly exercised its discretion in relation to the award of costs — appeal dismissed with costs.
Forfeiture of property : Section 50 1 of the Prevention of Organised Crime Act of : whether property, a lifting platform and equipment alleged to have been stolen, susceptible to seizure : whether NDPP ought to have become involved in commercial dispute. Immovable property : title deed : registered condition entitling developer to have property re-transferred to it in certain circumstances : this a personal not real right, capable of prescribing.
Road Accident Fund Act 56 of : undertaking to pay future services under s 17 4 a of that Act : undertaking may be given in respect of the cost of providing a domestic assistant. Application for leave to appeal in terms of 17 2 d of the Superior Courts Act 10 of granted — in relation to merits of the appeal — claim for specific performance of a written agreement between independent contractor and the South African Broadcasting Corporation SABC — SABC ordered to comply with written agreement — SABC has to conduct itself within constitutional parameters and within its statutory mandate — Broadcasting Act 4 of Criminal Law and Procedure: appeal by NDPP against conviction in terms of the Criminal Procedure Act 51 of CPA : the respondent charged with murder read with s 51 2 of the Criminal Law Amendment Act of found guilty of culpable homicide based on his statement in terms of s of the CPA: reserved question of law: probative value of a statement made in terms of s 2 a of the CPA.
National Prosecuting Authority Act 32 of — whether discretion in terms of s 41 6 properly exercised by the National Director of Public Prosecutions in refusing to grant permission to publish record of investigation in terms of s Murder — cause of death — expert medical evidence — scientific and judicial measures of proof — erroneous application of scientific measure by trial court — cause of death inconclusive — application of judicial measure — probable cause of death — natural causes — determination of guilt — evidence of guilty conduct and mendacity — unlawful killing not the only reasonable inference to be drawn.
Condonation: application for condonation for late filing of appeal record not granted. Delay excessive and inexplicable. Interlocutory interdict: whether appealable: whether final in effect: contention that patent would have run its course prior to finalisation of action for final interdict: restatement of test for appealability: order must be definitive of an issue and not susceptible of alteration by court of first instance: interdict interim in form and effect: not appealable.
Delict: Medical negligence: pleadings: causation: pleaded causation not established: appeal dismissed.
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Jurisdiction — voluntary association — self-regulation of advertising industry — no jurisdiction over non-members — costs on appeal — discretion — agreement on substituted order. Application to set aside business rescue proceedings — creditors have direct and substantial interests — non-joinder of creditors is fatal to the relief sought in the application. Claim for re-transfer of property — a debt as contemplated in Chapter III of the Prescription Act — whether reversionary clause creates a limited real right or a personal right — right not absolute but a relative one and only enforceable against a class of individuals — prescription affects the contractual right to claim re-transfer — claim prescribed.
Practice: Civil Procedure: extinctive prescription: claim by bank for payment of a debt arising from loan agreement: mortgage bond registered over a notarial lease: lease cancelled and thus security falling away: debt no longer secured: period of prescription running from date when amount payable under the loan became due as envisaged in s 12 1 of the Prescription Act 68 of Application for condonation and re-instatement of lapsed appeal — adequacy of explanation for delay — delay extreme and explanation unacceptable — application dismissed with costs.
Refugees Act of : decision to close refugee reception office under s 8 1 : challenged for want of rationality : decision-maker not taking into account relevant considerations, not complying with the empowering provision, acting with ulterior and improper purpose and making error of law. Securities Services Act 36 of — proceedings before enforcement committee — not in the nature of criminal proceedings — civil standard of proof applies — administrative penalties imposed by enforcement committee — not in the nature of a penal sanction.
Asylum seekers in terms of the Refugees Act of may not, while they are in the country, apply for a visa in terms of s 10 2 of the Immigration Act 13 of , read with regulation 9 2 of the Immigration Regulations. Rescission — a court of appeal may only interfere if power not properly exercised — no bona fide defence which prima facie carries prospects of success. Arbitration Award — review — arbitrator alleged to have committed gross irregularities — s 33 1 b of the Arbitration Act 42 of — gross irregularities not proved — appeal dismissed.
Attorney — whether fit and proper to practise notwithstanding being sequestrated — whether suspension an appropriate sanction for an attorney guilty of non-disclosure of critical information when applying for his sequestration — no sound reason to interfere with the exercise of discretion. Administrative law - Town Planning and Townships Ordinance 15 of — owner of land in close proximity to proposed township having standing as an interested person to challenge establishment of township.
Fairness of procedure to approve township — breach of legitimate expectation of a hearing by municipal tribunal — procedure inherently unfair in various respects. Party excluded from process not obliged to pursue internal appeal against such decision before seeking to review the administrative action taken. Procedure — striking out — court required to exercise practical, common sense and flexible approach in considering whether allegations made in reply need be struck out — cross-appeal relating to the failure to strike out an incontrovertible fact which was in any event not relied upon to decide the merits of the dispute — cross-appeal dismissed.
Prescription: actual or constructive knowledge necessary for prescription to start running that of board of trustees: appellant failed to prove that board had actual or constructive knowledge by relevant date. Delict — Pure economic loss — Loss suffered as a result of debarment in terms of s 14 of the Financial Services Advisory and Intermediary Services Act 37 of — Whether conduct of employer in debarring employee without complying with the provisions of Promotion of Administrative Justice Act 3 of was wrongful and gave rise to damages.
Criminal law — appeal against conviction of rape — appellant failed to testify — conceded by appellant that sexual intercourse proved — lack of consent and intention also proved — appeal against conviction dismissed — appeal against sentence — no misdirection on part of court below and sentence of 22 years imprisonment not shockingly inappropriate — appeal against sentence dismissed.
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Lease — agreement to pay rental in advance without deduction — exclusion of reciprocity — landlords failure to grant full beneficial occupation of entire leased premises — tenant obliged to pay rent. Interpretation of an agreement of settlement made an order of full court on appeal to it: agreement is binding on all the parties to the litigation, including one who has not participated but has chosen to abide the outcome of the appeal.
Promotion of Administrative Justice Act 3 of day period in s 7 1 : whether court a quo could have raised the delay mero motu: when the period commenced to run: whether there was compliance with s 7 1. Criminal Procedure — rape — sentence — life imprisonment — minimum sentence in terms of Criminal Law Amendment Act of — substantial and compelling circumstances — proper approach — to require exceptional circumstances for the determination of whether substantial and compelling circumstances exist, incorrect — sentence of life imprisonment set aside and replaced with 15 years' imprisonment.
Application for permanent stay of prosecution — extraordinary remedy — complaint that the right to have trial begin and conclude without reasonable delay infringed — many years of postponements and delays — material and substantial part of delays due to the State — dishonest conduct by the State — appropriate remedy for infringement of Constitutional right.
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Criminal Procedure - Appeal against sentence - whether substantial and compelling circumstances exist to justify deviation from prescribed life sentence - whether misdirection by trial court and full court - no misdirection found - appeal dismissed. Section 16 2 a i and ii of the Superior Courts Act 10 of — judgment or order sought on appeal would have no practical effect or result — no exceptional circumstances justifying a consideration of the matter with reference to the issue of costs — appeal dismissed.
Appeal — application for leave to appeal against convictions dismissed by regional magistrate - petition refused by the court a quo- special leave to appeal against the dismissal of petition granted to Supreme Court of Appeal — whether leave to appeal ought to have been granted by court a quo - whether there are reasonable prospects of success. Where an acknowledgment of indebtedness is made by a debtor to a creditor, even in without prejudice settlement negotiations, the acknowledgment may be admitted in evidence for the sole purpose of interrupting the running of the prescription period in terms of s 14 of the Prescription Act 68 of Constitutional law — application by media to broadcast criminal proceedings — tension between the right to freedom of expression and the open justice principle, on the one hand and the right to a fair trial, on the other — those rights should as far as possible be harmonised with one another — court must exercise a proper discretion under s of the Constitution in each case by balancing the degree of risk involved in allowing the cameras into the court room against the degree of risk that a fair trial might not ensue — courts ought not to restrict the nature and scope of the broadcast unless prejudice is demonstrable and there is a real risk that such prejudice will occur — mere conjecture or speculation that prejudice might occur ought not to be enough.
Application in terms of s 17 2 f of the Superior Courts Act 10 of powers of the President of the SCA: in exceptional circumstances: to refer a decision of this court on petition for reconsideration and, if necessary, variation: exceptional circumstances not found: application refused. Attorney: duty of an attorney to client: breach of mandate in respect of claim for damages for loss of earning capacity: damages not proved: absolution from the instance should have been ordered: appeal dismissed.
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First appeal — appeal lapsing on account of failure to timeously prosecute it — application for condonation. Second appeal — discharge of provisional restraint order — failure on the part of presiding judge to bring an open and impartial mind to bear — proceedings before the high court on the return day set aside — provisional restraint order revived.
Both appeals — sequestration - substitution of insolvent by trustees on appeal — leave to intervene by insolvent. Adjudication by the National Energy Regulator of South Africa NERSA , a statutory regulator, of tariff adjustment application by Eskom, a licensee with a license, inter alia, to distribute as principal supplier electricity in South Africa : nature of adjudication process and decision: administrative action: subject to review in terms of the Promotion of Access to Justice Act 3 of not, as suggested by NERSA and Eskom, immune from judicial scrutiny because it involved application of policy.
Price adjustment methodology discussed, interpreted and applied: whether decision by NERSA rational and whether adjudication process and decision unfair. Discussion of deference to specialised administrative body. Delict : premature discharge by doctor of patient from hospital due to unlawful strike : patient had sustained multiple fractures and was due for orthopaedic surgery : died shortly after discharge : cause of death not determined by pathologist : no reliable expert evidence on which negligence could be attributed to the hospital : inadequate preparation of action for loss of support : no thought given to holding hospital liable on the basis of failure to have in place emergency plans to deal with strikes : organisers of strike not joined as parties to litigation : in any event primary problem of lack of evidence relating to cause of death not overcome.
Contract: Lease: divergent factual versions on terms: doctrine of quasi-mutual assent wrongly applied by the high court: appeal upheld. Sentence: premeditated murder: prescribed minimum sentence: in terms of the Criminal Law Amendment Act, of what constitutes substantial and compelling circumstances: effect of failing to take into account certain aggravating factors: prescribed sentence not to be lightly deviated from: to be imposed if it is not disproportionate to the crime, the criminal and the needs of society.
Appeal: Power of court of appeal: Section 16 2 a i of the Superior Courts Act 10 of Appellate Court empowered to dismiss an appeal where judgment or order sought would have no practical effect or result: Discretion of court: Not an appropriate case for court to exercise its discretion in favour of determining merits of the appeal: Appeal dismissed. Customary law: decision of the Commission on Traditional Leadership Disputes: whether implementation of the decision in terms of s 26 2 of the Traditional Leadership and Governance Framework Act 41 of Old Act required prior consultation with Royal Family under s 9 of the Old Act: whether implementation of the decision required compliance with provisions of s 10 1 c of the Old Act: implementation of the decision of the Commission did not require consultation in terms of s 9 of the Old Act: deeming provision under s 28 of the Old Act and s 26 of the New Act did not bestow status of king where the Commission did not uphold claim to kingship: provisions of s 10 1 c were not applicable.
Administrative law: validity of a demolition order granted as just and equitable remedy: order granted pursuant to a finding that Municipality decisions approving rezoning of property and approving building plans were unlawful: order vitiated by failure to set the approval decisions aside, failure to specify portion s of the building to be demolished, and failure to exercise discretion in determining just and equitable remedy: court order found to lack clarity and certainty.
Appeal in terms of s of the Criminal Procedure Act 51 of Section provides for an appeal as of right, without leave: failure to have regard to all the evidence in determining the guilt or otherwise of an accused constitutes an error of law: question of law upheld: order of the high court set aside: conviction and sentence imposed by the regional court reinstated and matter remitted to the high court for the appeal to proceed on the merits. Law of Delict: pure economic loss: whether Municipality liable in delict for pure economic loss arising out of the alleged failure by the Municipal Manager to issue a s 82 certificate in terms of the Town-Planning and Township Ordinance 15 of Road Accident Fund 56 of — Interpretation of regulation 3 3 dA of the Road Accident Fund Regulations — failure of the Fund to take a decision within prescribed period does not create a deeming provision — remedy of claimant lies in s 6 2 g of PAJA.
Criminal Law and Procedure: acting in concert with common purpose: murder and robbery with aggravating circumstances: purported special entries in terms of s of the Criminal Procedure Act 51 of to be strictly complied with and resorted to only if the irregularity does not appear on the record: appeal dismissed. Criminal Law and Procedure: appeal against conviction and sentence: principles of joint possession of firearms applied: appeal against conviction for unlawful possession of firearms upheld in part: cumulative effect of sentence appropriate.
Where a party to a contract repudiates it, the aggrieved party has an election to abide by the contract and enforce its performance: if that election is exercised, but the defaulting party nonetheless persists in the breach by evincing an unequivocal intention not to remedy the breach, the aggrieved party, after affording the defaulting party the oportunity to repent of the repudiation, may change the election and cancel the contract and claim damages.
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Appeal: mootness: the court should exercise its discretion to hear an appeal where it relates to the proper construction and application of important provisions in the National Education Policy that will impact on the future conduct of education officials and learners. Witnesses in criminal trial: administration of the oath: may be administered by interpreter: s of Criminal Procedure Act 51 of Robbery — prosecution submitting that evidence of identification of accused unsatisfactory and that accused should be acquitted on appeal to full bench — appeal nonetheless dismissed — appeal upheld — function of appeal court where prosecution does not seek to uphold conviction.
Striking off is an appropriate sanction for an attorney guilty of misappropriation of trust moneys and failure to account for funds entrusted to him: No reason to interfere with the exercise of discretion. Res judicata — requirements — issue estoppel — identity of interest between plaintiffs in the two actions sufficient to satisfy requirement of same party — identity of issues and claims in both actions.
Civil marriage solemnized in December in the erstwhile Transkei: the Marriage Extension Act 50 of did not alter the matrimonial property regime of parties who married without an ante-nuptial contract after 27 April marriage out of community of property. Municipal Systems Act 32 of Sections 1 b and 3 : right of municipality to transfer credits between accounts: single account holder: properties with different owners: amounts outstanding on both properties by account holder for services supplied by municipality: transfer of credits by municipality from first account to second account: resultant liability of owner of first property increased and that of owner of second property decreased: municipality entitled to claim from owner of first property increased balance owed.
Contempt of court: failure to comply with court order: no proof of non-compliance, wilfulness or mala fides: s 16 2 a i of the Superior Courts Act 10 of issues on appeal having no practical effect: appeal dismissed with costs. Companies Act 71 of : proposed business rescue plan : proper interpretation of section 1 a ii and 7 : the determination whether a vote by a creditor against the adoption of a proposed business rescue plan was inappropriate and ought to be set aside entails a single enquiry : a court will set aside a vote on the ground that its result was inappropriate if it is reasonable and just to do so : thus entails a value judgment : effect of the court setting aside vote : once vote is set aside, proposed business plan considered to have been adopted ex lege : no further vote envisaged by the Act.
Conviction and Sentence — special leave to appeal — reasonable prospects of success on appeal against conviction to the high court, and special circumstances present which would justify the grant of special leave to appeal to the high court — failure by the trial court to take account of inconsistencies in written statement and oral testimony of single witness — failure to consider elements of charge of attempt to steal a motor vehicle — leave to appeal to high court granted.
Contract: whether agreement to establish a diesel depot constituted extension of an existing supply agreement between the respondent and a trust or a new agreement with trustee of the trust in personal capacity : respondent satisfied onus to prove the former : appeal dismissed. Application for forfeiture order in terms of s 48 1 of the Prevention of Organised Crime Act of : whether residential property is instrumentality of an offence : property used in contravention of ss 82 a and 83 b of the Diamonds Act 56 of : whether forfeiture constitutionally disproportionate.
Sale : action for purchase price : express term as to risk passing to purchaser : ambit of risk : risk event causing loss : purchase price payable. Conservation of Agricultural Resources Act 43 of CARA : Regulation 9 : land users as defined in CARA responsible for ensuring that grazing land is protected from overgrazing and deterioration : CARA not explicitly prohibiting a land owner from pursuing remedy in the form of a restraining order : land users not exercising grazing rights in terms of the provisions of the Extension of Security of Tenure Act of but in terms of an agreement with landowner.
Court practice : Court orders :overbroad court orders not sought by parties and not supported by pleadings : such orders not sustainable, especially where parties were not afforded opportunity to make prior representations : orders set aside both in appeal and cross appeal. Costs : de bonis propriis : where attorneys flagrantly disregard court rules by late delivery of heads of arguments without proper explanation : additionally, attempting to obtain postponement without proper basis : such conduct prejudicing opponent : appropriate to mulct attorney with costs.
Practice — urgent application — whether court order issued orally only was effective — whether there was proper notice and service to affected parties — contempt of court — whether the requirements for contempt of court were proved beyond reasonable doubt. Defamation: liability of the media: test of: words complained of to be considered from the point of view of the reasonable reader: defence of justification: truth and public benefit: only the material allegations or sting of the article required to be substantially true: publication of defamatory statement found not to have been reasonable: damages: assessment: award of R80 excessive justifying interference on appeal.
Administrative law: review of decision to cancel and re-advertise public tender: decision not authorised by regulation 8 4 of the Preferential Procurement Regulations, and irrational: decision correctly set aside.